Tuesday, April 28, 2015

The Bonauto: An Imagined Dialogue of Plato

By Michael Dorf

During the oral argument in Obergefell v. Hodges, Justice Alito said to Mary Bonauto, the attorney arguing for the plaintiffs, that ancient Greek society was not hostile to gay people--indeed, Plato wrote approvingly of homosexuality. Yet the Greeks did not recognize same-sex marriage (SSM). Ergo, Justice Alito implied, the prohibition of SSM does not demean gay people. Bonauto essentially punted the issue, declining to speculate on the implications of the views of philosophers, but the brief exchange led me to imagine how a somewhat longer discussion of this question might have gone.

Accordingly, after the fashion of The Crito or The Phaedo, I present The Bonauto:

Persons of the Dialogue

Scene: The Supreme Court of the United States


ALITO: Tell me, Bonauto, how can laws recognizing only opposite-sex marriage have the purpose of demeaning gay people when the ancient Greeks had only opposite-sex marriage and yet they approved of homosexuality?

BONAUTO: Well, for one thing, the ancient Greeks didn't have a conception of sexual orientation. I think they were all kind of bi.

ALITO: All the more reason to think that the Greek conception of marriage as only man-woman didn't reflect animus, isn't it?

BONAUTO: I don't know much about history, your honor, but I don't think that ancient Athens had a Fourteenth Amendment.

SCALIA: No no no, that's not the point. You say that it's irrational and nothing other than prejudice to deny same-sex marriage but for millenia we had only man-woman marriage. Did all of those societies harbor animus for homosexuals? Even the Greeks? The Greeks! [Stage direction: SCALIA holds out his hands and looks to the heavens.]

NOTORIOUS RBG: Isn't your answer that marriage itself was a very different institution back then and even until very recently, with a married woman's identity traditionally being absorbed into her husband's?

BONAUTO: Certainly, your honor, I was about to say that many of the institutions of ancient Greece would not pass muster under the modern interpretation of the Constitution.

ALITO: Like what?

BONAUTO: Slavery, for starters.

ALITO: Fair enough.

SCALIA: No it isn't fair enough. The Thirteenth Amendment explicitly bans slavery, just like the Fourteenth Amendment explicitly bans race discrimination.

NOTORIOUS RBG: No it doesn't.

SCALIA: [Not noticing NOTORIOUS RBG but speaking more loudly now] But no provision of the Constitution says anything about homosexuality. Which is fine, you know. I mean if a State wants to approve homosexuality or homosexual marriage or adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity, I mean, that's fine, but that's the business of the voters.

ALITO: What did Plato say about masturbation?

BREYER: I believe Plato condemned the "excess of self-love". It's an interesting question. Perhaps we should invite supplemental briefs.

BONAUTO: Uhm, which question would your honors like me to answer?

SCALIA: Mine. Always.

AUDIENCE: [Laughter]

NOTORIOUS RBG: I believe what Justice Scalia wants to know is what the Reconstruction Congress thought about what James Madison thought about what Plato thought about same-sex marriage.

AUDIENCE: [Laughter]

SPECTATOR IN THE GALLERY: You'll all burn in hell!

CHIEF: Marshalls, defenestrate that low-born rascal! [Stage direction: SPECTATOR IN THE GALLERY is thrown out the window]

SCALIA: That was refreshing.

CHIEF: The case is submitted.


Shag from Brookline said...

Beware of overbearing ancient Greek philosophers and consider what the late George Carlin actually said about masturbation:

"It's not illegal and if it were, people would take the law into their own hands."

(Sort of like Heller?)

Joe said...

These supplementary briefs. Can they be visual?

"is thrown out the window"

That's helpful. People have such poor vocabularies today; they might not otherwise know what that word meant.

Anyway, Greeks were pagans as a whole. Given Scalia's belief on the importance of recognition of God, how can we take what they say seriously?

matt30 said...

I was SOOO disappointed the history of marriage was not more well researched by Bonato.

I've seen the marriage has been defined for as a hetero union for "millenia" argument for years. But it seems lawyers don't bother to actually check if that's true.

If a culture (such as ancient Greece, or Rome prior to christianization) had no taboos about same sex relationships why did they not permit same sex unions?

Or if they did have same sex unions, why was it different than matrimonium?

While Roberts may be right that coverature, as a legal concept, wasn't a globally recognized doctrine I don't know if it's true that marriage was egalitarian in a world that has primarily organized itself under patriarchal rules. I suspect that is a significant reason why there was no such thing as gay marriage in sexually tolerant civilizations.

Obviously, the length of time "traditional" marriage has been around is irrelevant so long as there were also laws banning merely being gay (in the western world this is probably the time spanning the late Roman empire until the late enlightenment).

I wrote about some of this http://strainedinterp.blogspot.com/2015/04/historicity-and-gaystm-part-i.html but it still puzzles me why it hasn't been addressed in an academic way.

King Kane said...
This comment has been removed by the author.
King Kane said...

I find it all the more jarring that Justice Alito brought up ancient Greek and Plato after he belittled Judge Walker in his Windsor dissent for doing the same during the Prop. 8 trial. And I do not understand why he thought the practice of ancient Greeks is relevant to the 21st Century America.

Joe said...
This comment has been removed by the author.
King Kane said...

The state's attorney kept addressing Justice Ginsberg "Sir," was another annoyance during the oral argument. But there is some humor there in some ironic sense, for there is an undercurrent of sex discrimination in this case.

Samuel Rickless said...

It should be noted that it is not at all clear that Plato's views about the desirability of pederasty as a way of obtaining knowledge of the form of the beautiful were widely accepted by his fellow Greeks. Indeed, I would have thought that the ridiculing of Socrates in Aristophanes' *The Clouds* would have been widely endorsed, and also extended to Plato and his Academy. Plato was an aristocrat who was opposed to democracy, even while he was living in a democracy. His views about the desirability of same-sex relationships (particularly between older men and adolescent boys) probably added a veneer of justification to existing practices among aristocrats, but the idea that his views were widely accepted is just not credible.

Joe said...

Being a bit more serious, I do think Ms. Bonauto, a major light in the community in respect to legal rights for same sex couples, was a bit hesitant in her argument. Verilli to me came off the best.

I also think more should have been done, including in amicus briefs, to note the history of same sex marriages. There has been academic research on the long history of some sort of same sex relationships that are at least akin to marriages (not limited to what might be seen as transgender individuals). See, e.g.:


A book also just came out (the researcher also had an article in an academic journal that received some attention) about two women who in effect (and people actually used the word) lived as a married couple in mid-19th Century Vermont.


A past contributor (like Alito) ridiculed the novelty of SSM in respect to it being a protected aspect of the fundamental right of marriage. But, putting aside stereotypes and ignorance, what would at least be seen as a sort of "common law" same sex marriage was around for some time. I dare say some academics might argue "for a millennium."

A better sense of the history involved (note how Lawrence v. Texas used history somewhat surprisingly to promote gay rights here) would have been appreciated. SSM didn't come out of nowhere the last decade or something.

And, yes, the history of marriage overall is complex, and study of ancient philosophical understandings would be useful. For instance, note how in the Gospel of Thomas Jesus says Mary (Magadelene) will "become a man" because of belief of gender at the time that saw the masculine as superior.

"Proper" sex roles play a part there on the development of animus against gays. "Improper" gender roles as much as things like opposition to "foreign" practices involved Jewish and Christian thought here. Also, often same sex relationships were not on an equal basis. Modern equal protection views would find this problematic.

History of marriage should not be left to the conservatives.

Joe said...

Edit: Beliefs of proper sex roles and opposition to practices of foreigners (including Roman same sex relationships) influenced Jewish and Christian beliefs.

And, the same sex relationships accepted by the Greeks and Romans often were master/servant varieties. So, e.g., some infer that the Roman centurion was worried about a lover when he asked Jesus to heal his servant.

I don't know how much even the Greeks or Romans as a whole supported the sort of equal partnership same sex relationships we are basically talking about here. Some snapshot view of Greek thought as tossed out by Alito is a bit misleading.

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Swatopluk said...

The ancient Greek city of Thebes had a famous all gay elite regiment. It got completely wiped out in the unwise war with Philipp of Macedonia. Philipp is reported to have praised their bravery and to have condemned those that had been critical of them (for being openly gay). So, the Greek opinion was clearly mixed on that.

Bill Walton said...

wasn't a globally recognized doctrine I don't know if it's true that marriage was egalitarian in a world that has primarily organized itself under patriarchal rules. I suspect that is a significant reason why there was no such thing as gay marriage in sexually tolerant civilizations.http://meizusale.com/

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