By Tom Baxter
A few years ago, Emory’s Michael C. Carlos Museum hosted a fascinating exhibit based on the papyrus legal records of a family which lived in Egypt in the 5th Century BC. As a testament to the lasting lessons such archaeological treasures can transmit, it came to mind last week when Barack Obama became the first sitting U.S. president to endorse same-sex marriage.
The papyri were the legal documents of a couple, Ananiah, a Jewish temple official, and his wife Tamut, an Egyptian woman who’d been sold into slavery as a child. They lived on the island of Elephantine in the Nile, in a time when Egypt was part of the Persian Empire and Jewish mercenaries guarded its southern border.
As it is today, relationships could be complicated back then. When she married Ananiah on July 3, 449 BC, Tamut was owned by another man, Meshullam, who didn’t free her or her daughter for another 22 years. Things worked out, though. Later papyri record Ananiah giving Tamut part ownership of their house, selling a house to his son-in-law and making payments on a wedding gift for their daughter.
The records are a striking contrast of the bizarre with the familiar. The conventions of legalese have changed so little over the millenia that a modern-day lawyer would feel completely at home with these contracts. But the concept of marriage around which these legal proceedings revolve appears to have been radically different from ours today.
The contract between Ananiah and Tamut is so detailed that it specifies on which side of the stairs each is to walk up and down. But as far as the state was concerned, marriage contracts like theirs – the notarized enumeration of what one party could take the other to court for, if things didn’t work out – was all the marriage was. Since Ananiah was a religious leader, there may have been a ceremony to sanctify the marriage within the Jewish community on the island, but over the whole of Egyptian society, the state’s involvement in defining, protecting and preserving marriage was quite limited and specific to each coupling.
If government has developed a better way to deal with this complex aspect of human society, it was not in evidence last week, when North Carolina voters overwhelmingly declared their support for an amendment defining marriage solely as the union between a man and a woman, and Obama declared the next day that he’d decided his “evolving” views on the subject and supports the right of people of the same sex to marry.
By comparison with other historic stands taken by presidents, Obama’s carried remarkably little weight. The states decide this issue, and one just had. Obama’s statement on a morning news show the following day was couched more as something which had been forced by Vice President Joe Biden’s unguarded comments on the subject rather than the embarrassment of a big vote in the state where the Democrats will hold their convention this summer. This sounds progressively more fishy the longer you think about it, particularly when you hear how angry the Obama staffers sounded about Biden’s goofiness, according to the reporters who repeated on-the-record what the staffers told them off-the-record.
Yet symbolically, Obama’s statement was rightly looked on as an historic event. The North Carolina vote, which put into the state constitution what was already on the books as state law, was also largely symbolic. And lemme tell you – as former Gov. Roy Barnes might have said after his bitter experience with changing the state flag – symbolism is the rat poison of good government.
Should government get more involved in marriage, as those on both sides of the current controversy would have it, or less? At present the states and the federal government find themselves in a cycle of ineffectiveness. Washington has no power over what the states define marriage to be, but because of the Defense of Marriage Act, signed by President Clinton, which prohibits same-sex couples from the rights and protections of marriage in more than a thousand federal laws, it really doesn’t matter what the states do either. Because our modern concept of marriage — unlike the Egyptians — involves a certain fusion, long since blurred, between the provinces of religion and the state, we appear bound to debate state by state an issue which in some respects can only be settled congregation by congregation.
Nor does government at the federal or the state level have the ability to stop the steady decline in heterosexual marriage, as attested by a voluminous array of statistics on divorce, unwed mothers and single-parent households. In terms of the work hours it has to invest, government’s biggest involvement with marriage today is the administration of breakups and the management of the carnage that often comes with them.
Administratively, things were much easier for Ananiah and Tamut, which makes it impossible to replicate the arrangements of their day. But their preserved family records challenge us to think about whether we’ve really figured out what aspects of marriage government should involve itself in, and what it shouldn’t.
And of course, the ever-progressive Alabama Legislature passed the same law as North Carolina did but without referendum. Too much fanfare, you know. Best to keep these matters in-house.
Good piece, Tom. “Symbolism is the rat poison of government” indeed!
While it is true that at present DOMA restricts what the federal government can do, it should—and some day will—be repealed, hopefully within our lifetimes. Also, it may very well be that the federal government, in the form of a Supreme Court ruling, may decide that state constitutions and statutes banning same-sex marriages violate the US Constitution’s equal protection safeguards, as happening in Loving v. Virginia, which voided state laws prohibiting the marriage of people of different races. Government’s role in same-sex marriage is far from decided. This particular arc of justice is bending more quickly than most others.
Government regulation of marriage is not a modern invention in Anglo-American law, but developed when Henry VIII of England broke with the Catholic Church and many formerly ecclesiastical matters became subject to English common law. Marriage could be thought of as a tripartite agreement among a man, a woman and the state. There was a time when women were uneducated, powerless and needed the protections of the state. Not so much now. These days heterosexual marriages are more likely to be thought of as a contract between equals rather that, say, a father giving his chattel daughter away to the ownership of another man.
I was not a great fan of same-sex marriage until the AIDS crisis came upon us. It was not unusual for a gay man to leave his home and birth family—or be driven away— in the rural South, move to Atlanta, and make a life together with another man. It was not uncommon for the birth family of a deceased man to appear after several years of estrangement and try to obtain ownership of his estate, leaving his partner of many years with none of it. There are ways to avoid many such problems, but that requires more foresight than most of us have, as well as the expense of legal advice and planning.
For many gay men and lesbians same-sex marriage is not an issue to be settled congregation by congregation. Because of the churches’ hostility toward homosexuality, hundreds of thousands have left Christianity and the other Abrahamic religions, and will never return. It’s about a more fundamental fairness.
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