Continuing legislative measures attempting to ban gay marriage show that this issue, so critical in our last national election, remains a controversial topic. Since many of our political institutions are derived from ancient Roman precedents, a quick look at Roman laws regarding homosexuality serves to illustrate what may be driving some of the current controversy surrounding gay unions in the United States.

While the world of the ancient Greeks seems to have tolerated homosexuality (as seen in the poems of Sappho and the dialogues of Plato), that of the Romans was more cautious. Romans in the period of the Roman Republic and early empire tended to perceive the Greek acceptance of male homosexuality as less than male and, thus, literally unvirtuous (Vir being the Latin word for man). Indeed, a Roman term for effeminacy was “Graeculus”—“a little Greek!”

The earliest Roman law regarding homosexuality appears to have been the Lex Scantinia that was passed by the Roman assembly at some point in the Roman Republic (perhaps in the second century BC). Although the text of this law itself has not survived, later Roman jurists of the second and third century AD describe how it outlawed the homosexual rape of young male Roman citizens. Consensual male or female homosexual unions apparently were not legislated against. Although there is scholarly debate, Roman literature of the republic and early empire suggests that men who engaged in consensual liaisons were often mocked as unmanly, but consensual homosexual sex itself was not illegal.

This would change in the later Roman Empire. While the first three centuries of the empire saw no legislation as far as we can tell regarding homosexuality, aside from the continuation of the Lex Scantinia as marked by its citation by the Roman jurists, in the fourth century there would be dramatic new laws condemning male homosexuality. Most scholars interpret a convoluted law from the year 342 AD surviving in both the Theodosian Code and the Code of Justinian as a decree from the emperors Constantius II and Constans that marriage based on unnatural sex should be punished meticulously. Although Constans himself was later denounced as having male lovers, this trend of the emperors in condemning male homosexuality in laws would continue. In a law of 390, surviving in the Theodosian Code and the Lex Dei (‘Law of God’), the emperors Valentinian, Theodosius, and Arcadius ordained that any man taking the role of a woman in sex would be publicly burned to death.

These laws certainly demonstrate a change from the Roman Republic where, to be sure, homosexual rape of male citizens was condemned but consensual homosexual sex was tolerated, even if sometimes mocked. Why did this change occur? The answer is fairly straightforward and lies ultimately in the results of the actions of the famous Roman emperor Constantine. In 312, this father of the emperors Constantius II and Constans had reached out to Christianity as the basis for his authority. Throughout the next 25 years of his reign, Constantine supported Christianity and gave financial help to the Church and legal sanction to some of the bishops’ powers. As his sons came of age in an increasingly Christian society, they and many of their advisors would have grown up with Biblical strictures. Thus, the pronouncements of the Book of Leviticus (18. 22, 20. 13) against male homosexuality as an abomination punishable by death in God’s eyes would logically have influenced writers of imperial law. Such strictures were reinforced in the New Testament (Romans 1. 24-27). So, it would appear that the growing influence of the Bible in an increasingly Christian Roman empire led emperors to condemn homosexual unions.

When we look at the current attempts in the United States to ban homosexual marriage, we must clarify what the premises for such measures are. If the drive to stop homosexual marriage ultimately derives from the Hebrew Bible, and its acceptance as religious truth by Christians, would not laws banning homosexual marriage be thus derived from religion? If so, such new legislation may well be an attempt to break down the “Wall of Separation” between Church and State that Thomas Jefferson described as an integral aspect of American government.

Related Links

Hendrik Hartog: What Gay Marriage Teaches About the History of Marriage

David E. Kyvig: The Unintended Consequences of an Amendment to Ban Gay Marriage

Peggy Pascoe : Why the Ugly Rhetoric Against Gay Marriage Is Familiar to this Historian of Miscegenation

Randy Scholfield Gay Marriage? What Next ... Women Voting?

Ryan W - 11/8/2008

While I'm personally fine with the legalization of gay marriage I'm concerned about your interpretation of "separation of Church and State" since it seems to abuse the concept in a way that's increasingly common and ahistorical.

Recognition of a particular religion, such as saying "Christianity is the official state religion" is prohibited. But declaring Saturday or Sunday a holiday, for instance, is not in any way prohibited even if the practice has a religious basis.

Thomas Jefferson himself officiated over worship services while in office and believed religion absolutely necessary to the functioning of the state.

The ban on official recognition of religion nowhere prohibits the adoption of laws that are simply derived from biblical values. You're welcome to try and find some legal precedent of that sort prior to, say, 1850 and post it here. Good luck.

While I'm all for gay rights, I'm also concerned about the skewed ideology and misinterpretations of history so many people use to justify things like gay marriage. It's not a good sign.

John H. Kimbol - 3/1/2006

These historical parallels could indeed be very valid today. When the law allowing gay marriages was passed in Spain earlier this year it was the Catholic Church that launched the most fierce of campaigns against it. In many cases the law was portrayed in the media by members of the Church as a frontal attack from the government against the religious Institution.

Jim Williams - 2/21/2006

Boswell's work on Rome received harsh criticism from the outstanding Roman Social Historian Ramsay MacMullen, because Boswell "spun" the evidence to support his thesis.

A better recent treatment is Thomas Hubbard's Homosexuality in Greece and Rome, which contains both sources and Hubbard's acute analysis. The case of Nero's "marriage" may well be spurious character assasination of Nero by Romans who hated his guts. There is no evidence that Romans had legal homosexual marriages.
The article here is pretty good, but it could be clearer on a number of factors. In the early Republic, homosexuality was apparently criminalized. By the late Republic, criminal penalties lapsed (except in the case of homosexual rape), but the Romans indeed believed that the passive homosexual forfeited his masculinity. As the article states, Romans regarded such people with contempt. Ambivalence towards even the active homosexual existed as well, according to the sources which Hubbard provides.

Andrew D. Connally - 2/21/2006

Isn't it true that at least some form of marriage between men was not unknown among the Romans? I seem to remember reading about a letter that Cicero wrote bemoaning the fact that his son had "married" another man. I also remember that the Emperor Nero was said to have engaged in one or two "marriage ceremonies" with men (even though one can hardly judge what the Romans did as a people from the actions of some of their rulers). There is a learned discussion about all this in two books authored by the late Yale history professor John Boswell. One is entitled "Christianity, Social Tolerance and Homosexuality" and the other is "Same Sex Unions in Pre-Modern Europe".