Plato, Justice Alito and the institution of marriage

The April 28 oral arguments before the US Supreme Court in Obergefell v Hodges will be remembered as a historic – and hopefully triumphant – moment for civil rights. Even the debate by the opposing attorneys and comments by the nine justices may be recalled and studied for how this landmark case was decided.

As Americans debate the courtroom drama, across the Atlantic, the Republic of Ireland became the first country to legalize same-sex marriage by popular vote on May 22, a result that had citizens celebrating in the streets of Dublin.

Will the United States follow a similar path by court mandate, rather than popular vote, or will the high court look to the past for answers?

The April 28 discussion in the courtroom quickly turned into a conservative commentary on history, tradition and anthropology.

Having spent my pre-law years studying classical Latin and Greek, including translating The Republic, Plato’s timeless essay on society, politics and justice, my interest was piqued when I heard Justice Samuel Alito’s reference to the Greek philosopher.

What is an ‘official’ marriage?

Alito’s remark followed a flurry of questions from the bench about the time-honored definition of state-sanctioned marriage.

Justice Anthony Kennedy proclaimed that the traditional definition of marriage as between one man and one woman has been a fixture in civilized societies for millennia. However, our society can quickly adjust once the injustices of historical prejudice are acknowledged.

Even Kennedy conceded that the same span of time – roughly 12 years – between the high court’s most significant racial equality cases, Brown v Board of Education and Loving v Virginia, has now elapsed between the court’s landmark decision in Lawrence v Texas, which declared a law criminalizing homosexual sodomy unconstitutional, and the current same-sex marriage case.

However, Alito, Chief Justice John Roberts and Justice Antonin Scalia remained fixated on the historical and anthropological definition of marriage. Scalia insisted that no society had recognized marriage as between two people of the same sex until the Netherlands in 2001.

And just in case his more liberal colleagues voiced concerns that the impetus behind the bans on same-sex marriage was actually discrimination, Alito pointed out that even ancient Greece, where Plato himself authored dialogues replete with pro-homosexual references, did not recognize same-sex marriage.

Ancient Greece did not recognize same-sex marriage

Alito overlooked one major point: Plato would not have supported same-sex marriage. A combined reading of Plato’s The Republic and The Laws, his final dialogue espousing a harsh view of homosexuality, indicates that Plato believed sexuality of any kind was a dangerous distraction and antithetical to his ideal society, where wisdom, justice and courage were valued above all else.

Plato rejected sexuality of all kinds

Plato believed that sexuality was characterized by irrational “frenzy,” as opposed to logic, and that the only justification for sexuality was procreation. In fact, Plato’s ideal justice system would have made all pre-marital sex, heterosexual or not, illegal.

So much for Alito’s attempt to reach across the bench to his liberal co-justices with an olive branch. Even Plato was a social conservative.

But where Plato would have parted ways with the justice is his “It’s-always-been done-this-way-so-why-change-it” argument. This refrain, the focus of a good portion of the hour-and-a-half argument, defies even ancient philosophical thought. Indeed, Plato’s The Republic proposes socio-political change in recognition of the fact that change can signal progress, a positive attempt to improve upon the status quo.

The “It-ain’t-broke-so-why-fix-it” reasoning has never been a valid justification for rejecting reform. Where would we be today had we accepted the rationale posed by the court’s conservative male justices in the early 1960s? Yes, it took decades after Reconstruction for Congress to pass the Civil Rights Act. Sure, desegregation faced struggles and setbacks. Skeptics might argue – justifiably so – that our country still suffers from the pernicious symptoms of racial prejudice.

But, history has shown us that most Americans support progress, even as it pertains to our common notions about the institution of marriage.

Marriage has shifted even for male-female match-ups

As Justice Ruth Bader Ginsburg observed, there has been a significant shift over time in marital dynamics from a dominant-subordinate relationship, in which the wife was subservient to her husband, to a more modern, egalitarian relationship. Her softball question to plaintiffs’ counsel Mary Bonauto said it all: “You wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago?”

In Plato’s Allegory of the Cave, prisoners chained to the wall of a cave mistake shadows for reality. When a prisoner escapes, he is forced to see the light. At first, the light is painful to his eyes, but he soon acclimates; the stars and moon and eventually the sun come into sharp focus.

Plato’s parable survives as a testament of an eternal truth: our perceptions of reality are separate and distinct from reality itself, and perhaps only through struggle can we find enlightenment.

Change is seldom easy, but we change nonetheless. As Justice Elena Kagan said, “We live in a constitutional democracy,” one that adapts and evolves to serve the justice of our time. We do not remain stagnant, paralyzed by the illusion of shadows or, as here, because something has been done a certain way for millennia.

Ireland – traditionally a conservative, Catholic country – just experienced a historic move in support of marriage equality; this signals a shift in societal attitudes toward non-traditional sexual choices and identities in other parts of the world.

With 37 states and the District of Columbia already aboard, the US may transcend the singular definition of marriage and grant full recognition to same-sex couples, whose modern, romantic relationships are just as valid as those of the age-old heterosexual ones.

By Danielle Weatherby, University of Arkansas

Danielle Weatherby is Assistant Professor of Law at University of Arkansas.

This article was originally published on The Conversation.

Read the original article.