A year ago June, the United States Supreme Court published its decision in the case of United States v. Windsor, striking down Section 3 of the Defense of Marriage Act (DOMA) that banned the federal government from recognizing marriages between same-sex spouses. Since then, at least nineteen lower courts throughout the states have cited the Windsor decision to support equal rights for gay couples. The most recent addition to the list, as of the writing of this blog post, is the United States District Court for the District of Oregon, whose presiding judge, Michael McShane, tossed out the state’s same-sex marriage ban on May 19, 2014. Prior to that came the May 9, 2014, decision in the Pulaski County Circuit Court of Arkansas. Former President Clinton, who has gone on record to express regret for signing DOMA during his presidency, can now celebrate the extension of marriage equality within his own home state.
Without a doubt, there has been tremendous change to the legal landscape of same-sex marriage during the past year. Even supporters might be feeling winded by the sudden acceleration of the marriage equality movement. So perhaps it is a good time to pause, take a breath, and reflect on the history of this moment, looking beyond the past year’s changes to the centuries-long tradition of same-sex marriage in the United States. During oral arguments in United States v. Windsor, Justice Samuel Alito, speaking from the bench, declared that same-sex marriage was “newer than cell phones.” His comment, intended to discourage his fellow judges from striking down DOMA, betrayed a profound misunderstanding of American history. Same-sex marriage is a minority tradition older than the nation itself.
The earliest accounts of same-sex marriage in the future United States can be found in the records of conquest and discovery. Spanish conquistador Álvar Núñez Cabeza de Vaca reported that on his 1528-1536 journey through the Gulf Coast he saw the custom of “one man married to another” (“casado” in the original Spanish). Although settlers often described indigenous same-sex marriages as “strange,” colonial culture had its own well-known same-sex marriage practice: unions involving “female husbands,” working-class women who lived as men and married other women. Later, men in the California Gold Rush and elsewhere in the nineteenth-century frontier often entered into “bachelor marriages,” some of which lasted a lifetime.
At the turn of the twentieth century, as queer subcultures began to develop in the nation’s growing cities, many committed same-sex couples organized weddings and referred to themselves as married. According to a questionnaire distributed by ONE: The Homosexual Magazine in 1961, 51% of respondents either were or had been in a same-sex marriage. By the time of the Stonewall riots, in June 1969, protestors shouted at police “we have the right to marry too!” Their cry described not just an aspiration, but a reality. The extensive evidence of that reality, however, has done little to change the common impression that same-sex marriage is a new invention.
Roberta Kaplan, the lawyer who argued against DOMA in United States v. Windsor, has attributed her success to the compelling story of her client Edie Windsor’s forty-four union with her wife, Thea Spyer. More than a decade of experience as an LGBT advocate taught Kaplan that “if you just focused on one couple people would really be able to understand what happened.” I’ve followed a similar logic in framing my new book, Charity and Sylvia: A Same-Sex Marriage in Early America, which tells the story of another female couple who lived together for forty-four years, a century and a half before Windsor and Spyer. I hope that their compelling story can put to rest the tired argument that same-sex marriage has no history, just as Windsor and Spyer’s story defeated DOMA.
Charity Bryant and Sylvia Drake met in February 1807 during a visit that Charity paid to the small village of Weybridge, Vermont, where Sylvia lived with her family. Charity was twenty-nine and Sylvia was twenty-two. They immediately fell in love and, unwilling to be parted, Charity rented a room in Weybridge where Sylvia came to live with her on July 3, 1807. The two women recognized this date as their anniversary throughout their lives together, and afterwards they seem never to have spent a night apart. They built their own cottage in 1808 and moved in on New Year’s Day 1809, living there together until Charity’s death from heart disease in 1851. When Sylvia died in 1868 her family buried her under the same headstone as Charity, believing that those who are united in life should not be sundered in death.
Everybody who knew Charity and Sylvia regarded the women as a married couple, or something like it. Hiram Harvey Hurlburt Jr., who grew up in a nearby village, recalled meeting the women in the 1830s at the tailor shop they operated, and hearing “it mentioned as if Miss Bryant and Miss Drake were married to each other.” Charity’s nephew, the famous poet and editor William Cullen Bryant, left a more romantic account of the women’s relationship in a letter that he published in the New-York Evening Post in 1843, following a visit to their cottage: “in their youthful days, they took each other as companions for life, and … this union, no less sacred to them than the tie of marriage, has subsisted, in uninterrupted harmony, for forty years.” The poet’s mother, Charity’s sister-in-law Sarah Snell Bryant, wrote quite simply to the women: “I consider you both one as man and wife are one.”
It is clear from all these examples that Charity and Sylvia’s marriage was not a secret. Far from it, the conservative, religious, farming community of Weybridge recognized, tolerated, and even celebrated the women’s same-sex marriage. This recognition does not comport at all with our assumptions about the history of sexuality and marriage during the early national era. In fact, whenever I tell people that I wrote a book about two women who lived in a same-sex marriage from 1807 to 1851 the first question they ask me is: is it fiction? No, the fiction is our assumption that before the present day marriage was an exclusively opposite-sex affair.
What I’ve learned from researching Charity and Sylvia’s story — drawing on an incredibly rich source base – is that same-sex couples could form marriages in the past, but it took a struggle. Prior to meeting Sylvia, Charity faced enormous hostility from neighbors in her home state of Massachusetts who found her refusal to marry a man, and her desire to form intimacies with other women, to be suspicious behaviors. Sylvia experienced rejection within her family after moving in with Charity. For years her mother and many of her brothers refused to visit the women in their home.
Only decades of dedication to their faith, to their community, and to their family, secured local acceptance of the women’s marriage. The women worked themselves ragged, sacrificing their health to earn money to donate to their nieces’ and nephews’ educations and to the upkeep of their church. They organized prayer meetings, taught Sunday school, trained local girls in the valuable tailoring trade, and ran the local benevolent societies. As Sylvia’s brother Asaph observed in a memoir written at the end of his life, his sister and Charity had “done as much to build up and keep society to gather considering thier means as aney other two individuals.”[sic] Sylvia wrote in the opening page of her 1835 diary, “Be useful where thou livest, that they may both want + wish thy pleasing presence still.” Charity and Sylvia’s story proves the wisdom of that dictum.
Until recently, most same-sexed couples who wished to marry faced the same struggles as Charity and Sylvia. What has changed in the past decade since Massachusetts first approved same-sex marriage in 2003, and in the past year since DOMA was overturned in June 2013, is that same-sex marriage has been secured as a legal right rather than a social exception. Today, in nineteen states plus the District of Columbia same-sex couples can simply apply for a license and be married. Looking back at the long history of same-sex marriage, as well as the short, gives us a better sense of what a monumental accomplishment this is.