If SCOTUS punts, Linda Hirshman won’t be discouraged:

[I]n Poe v. Ullman, Justice Harlan’s dissent from the Court’s standing decision was a rough draft for his opinion four years later in Griswold, and, indeed, is one of the most-cited and influential opinions in the modern era. If the Court votes to duck on Perry, it may very well happen that Justice Ginsburg will write a similarly persuasive dissent. This feminist luminary cannot be pleased to see her egalitarian writings about the abortion case used to urge the Court, as several legal commentators have done, to withhold equal protection from another disadvantaged group like gay and lesbian people. Although she says she is staying on, time passes, and she is unlikely to see another case of this magnitude directly in the area of her legacy.

While we are still on the topic, I recommend David von Drehle’s time-line of the movement from its very beginnings. (Also a must-read: a profile of Mary Bonauto, truly our Thurgood Marshall.) I’m particularlygrateful for the mention of Jeb Boswell, the astonishingly brilliant Yale historian whose book, Christianity, Homosexuality and Social Tolerance, lit the same fire in me as it did Even Wolfson, when we were both coming of age. It’s a world-shifting book, and all I can say is that I wish he’d had time to perfect his subsequent book on early same-sex unions in Christianity. He died of AIDS, like much of his generation. But the texts he found for Christian rites of union for two people of same gender were never in dispute as artifacts – just in dispute as to cultural meaning. Aaron and I used a prayer from an 8th century male-male union rite in our own wedding.

But when I say “very beginnings”, I mean simply the legal and cultural shift in the US from the early 1990s onwards. There’s a dangerous tendency to believe that somehow, this was the first time in human history that gay people had sought marriage, or deemed themselves worthy of it. That’s not true – and my anthology finds examples from 14th century China to Native American culture to African matriarchies. Here is Montaigne, writing in the late 16th Century, of an incident he had heard of:

On my return from Saint Peter’s I met a man who informed me humorously of two things: that the Portuguese made their obeisance in Passion week; and then, that on this same day the station was at San Giovanna Porta Latina, in which church a few years before certain Portuguese had entered into a strange brotherhood. They married one another, male to male, at Mass, with the same ceremonies with which we perform our marriages, read the same marriage Gospel service, and then went to bed and lived together. The Roman wits said that because in the other conjunction, of male and female, this circumstance of marriage alone makes it legitimate, it had seemed to these sharp folk that this other action would become equally legitimate if they authorized it with ceremonies and mysteries of the Church. Eight or nine Portuguese of this fine sect were burned.

“This fine sect”… “these sharp folk”. Montaigne was one of the first supporters of marriage equality. But he had to tell us in code. As we congratulate ourselves, let us recall the profound pain this stigmatization caused for so many throughout history, and the brutal repression they had to endure – even being burned alive for seizing their own destiny and declaring the church their own.

(Illustration: Burning of two sodomites at the stake outside Zürich, 1482, by Spiezer Schilling)