Within the next few weeks, gay marriage will become legal in the United States. A Supreme Court ruling is expected by June 22, and in the wake of Ireland’s legalization of it by popular vote on May 23, the outcome of the US ruling seems assured. While its fate still nominally hangs in the balance, however, some justices have been hinting at combative views in advance. And for better or for worse, they’re making headlines.

Ruth Bader Ginsburg made her support clear when she recently presided over a gay wedding. Shortly before that, Samuel Alito was ridiculed for reportedly comparing gay marriage to Greek pederasty and asking whether legalizing it will open the door to legal polygamy. Many others, supporters and opponents alike, have wondered about that connection, too (e.g. here, here, here, and here).

Since Alito has raised the question of ancient precedents, we can follow his lead and consider the two issues — gay marriage and legal polygamy — in tandem. If our fellow citizens are going to appeal to the practices of millennia past to decide gay marriage for us today, whether to support or to oppose it, Classicists had better make sure they know what those practices were — and were not. If they’re wrong, they risk generating a false equivalence between Rome and America and hence a bad reason for legitimating or prohibiting social arrangements, a domain in which custom tends to rule.

“The despotism of custom,” remarked John Stuart Mill (1806–1873),

is everywhere the standing hindrance to human advancement, being in unceasing antagonism to that disposition to aim at something better than customary, which is called, according to circumstances, the spirit of liberty, or that of progress or improvement. … Custom is there, in all things, the final appeal; justice and right mean conformity to custom; the argument of custom no one, unless some tyrant intoxicated with power, thinks of resisting.

The Classics do have real, lasting cultural currency, of course, and as I have argued before, ancient precedents can be very useful to think with today — provided we have a clear grasp of the facts; otherwise, they can wreak havoc. And since abiding by precedent is a bedrock principle of American law, a look at the reality of gay marriage in ancient Rome offers us a chance to reflect on the risks of appealing to the ancient world for settling modern social questions. That look, moreover, brings into view some interesting new complexities, since in ancient Rome it seems the offensive thing was not gay marriage but the gay wedding ceremony (or the wedding ceremony where one participant is transgender).

Let’s set the record straight: there was no gay marriage in ancient Rome. The law made no provision for it. Still, the internet is rife with sites that say otherwise, claiming the practice was “alive and well in Rome” and citing the same few “examples” of gay marriage in the earlier empire that scholars have long known about.

These anecdotes and texts — the marriage of Nero to Sporus, Juvenal’s second satire, an epigram by Martial, Plautus’ Casina — aren’t relevant to the subject of gay marriage. They do tell tales of wedding ceremonies between two men, but a wedding is not a marriage and a party is not a legal contract. None holds up under scrutiny as an instance of ancient Roman gay marriage.

The first example of gay marriage in Rome held aloft by supporters and opponents of gay marriage alike is that of the emperor Nero (37–68 CE), who married a man named Sporus after his wife died. The historian Cassius Dio (c. 155–235) tells the tale (28.2ff):

Nero missed her [Poppaea, his wife] so greatly after her death that on learning of a woman who resembled her he at first sent for her and kept her; but later he caused a boy of the freedmen, whom he used to call Sporus, to be castrated, since he, too, resembled Sabina, and he used him in every way like a wife. In due time, though already “married” to Pythagoras, a freedman, he formally “married” Sporus, and assigned the boy a regular dowry according to contract; and the Romans as well as others publicly celebrated their wedding.

While Nero had Sporus, the eunuch, as a wife, one of his associates in Rome, who had made a study of philosophy, on being asked whether the marriage and cohabitation in question met with his approval, replied: “You do well, Caesar, to seek the company of such wives. Would that your father had had the same ambition and had lived with a similar consort!” — indicating that if this had been the case, Nero would not have been born, and the state would now be free of great evils.

Suetonius (c. 69-after 122), historian and biographer of early Roman emperors, tells a version of the same story (28):

He [Nero] castrated the boy Sporus and actually tried to make a woman of him; and he married him with all the usual ceremonies, including a dowry and a bridal veil, took him to his house attended by a great throng, and treated him as his wife. And the witty jest that someone made is still current, that it would have been well for the world if Nero’s father Domitius had had that kind of wife. This Sporus, decked out with the finery of the empresses and riding in a litter, he took with him to the assizes and marts of Greece, and later at Rome through the Street of the Images, fondly kissing him from time to time.

Taken at face value, this text tells us in no uncertain terms that Nero was married to another man or boy — but should it be taken at face value? Sporus means ‘semen’ in Greek, so it might be prudent to wonder whether this anecdote represents reality (as some historians assume) or whether it might originate in the mime or some other form of bawdy popular entertainment.

This distortion would have good precedent; it happened to the Greek lyric poet Sappho, whose purported husband, Kerkylos of Andros (‘Mr. Prick from the Isle of Man’), originates in Greek Comedy. And there is another reason for skepticism. It does not seem to have occurred to Dio or Suetonius that in marrying Sporus, Nero (or a caricature of him), the famous fiddler, was consciously imitating Orpheus, the lyre player extraordinaire of mythology. The Augustan poet Ovid tells us that upon the loss of his wife Eurydice, Orpheus shunned intercourse with women in favor of homosexual relations (Metamorphoses 10.78–85). Hence even if the wedding between Nero and Sporus did occur, Edward Champlin is surely right that Nero himself meant the whole thing as a joke, timed to match the Saturnalia.

At any rate, it is even more problematic to suppose that’s wrong and that the episode is real and that it was meant in earnest, because in that case Nero’s “marriage” to Sporus stands to real marriage as sexual intercourse between consenting adults does to prison rape. Nero was the supreme chancellor of an authoritarian state, with inducements or coercions to dole out as he wished. In this context, Sporus’ ability to grant or withhold consent is meaningless. (Neither Dio nor Suetonius mentions whether Sporus agreed to be castrated, either.)

Real or fictitious, the anecdote has no place in a discussion of gay marriage as we know it. To think of it as analogous to two consenting men or women wanting to get married in twenty-first century America is to make a category error, like calling a whale a fish. As a whale is not a fish, Nero’s purported castration of and “marriage” to Sporus is not an example of gay marriage.

Unlike the stories about Nero, other texts held up as examples of gay marriage in ancient Rome depict both partners consenting to the union fully. The problem with these relationships for the Latin authors who tell us about them lies, however, not in an abuse of power but in the upsetting of traditional gender roles.

Consider Juvenal’s second satire. In it, we are told, one Gracchus — a name with aristocratic connotations, like “Kennedy” — wedded a “horn dog” (cornicen — literally, a “horn player,” but the pun is as deliberate in Latin as in English). Gracchus provided the dowry, which makes him “the wife,” and the marriage was celebrated in the usual fashion (119–20):

Papers were signed, “Yay!” was shouted, a huge
reception’s waiting, the weird (nova — a pun, since it also means “new”) bride lay in his husband’s lap.

Juvenal finds the thought an abomination and continues (124–6),

The same man who sweat it out in combat while
duly wielding sacred implements
is putting on ruffles and a dress and a veil!

Whereas Nero’s “marriage” resembled prison rape, not gay marriage, Juvenal’s revulsion is rooted in transphobia. The poet is disgusted by the idea that Gracchus, who had formerly acted in a manner befitting a Roman man, has voluntarily become a “wife.” His anger at Gracchus calls to mind the scorn poured on Bruce Jenner in recent months.

Of course the cases are not identical; Jenner remains attracted to women, whereas many men in ancient Rome were never attracted exclusively to women to begin with. All the same, it is Gracchus’ adoption of feminine clothing and a woman’s sexual role that upsets Juvenal. And if Gracchus did identify as female (as the third-century emperor Elagabalus is sometimes thought to have done), then calling her wedding a “gay marriage” makes for a second category error.

The last piece of evidence for Roman gay marriage, Martial 12.42, tells a similar tale:

Bearded Callistratus became the bride of (nupsit) taut Afer
by the same rite (hac qua lege) that maidens (virgo) and husbands (vir) do:
Torches lit their way, a veil draped his face,
And your words didn’t fail you either, Talassus.
Even a dowry was declared. Rome! Aren’t you
satisfied yet? What — are you waiting for him to give birth, too?

Martial’s point is the same as Juvenal’s. It brings to mind Plautus’ Casina, which is set in Greece but performed in Rome. The play ends (in a bawdy scene that probably stems from popular farce) with a groom tricked into marrying a false bride, another man who has stolen into the bedchamber after the wedding and surprises her “husband.”

One point that Plautus, Martial, and Juvenal have in common is that each says one of the two men getting married dresses as a bride for the ceremony. If the weddings celebrate relationships between one transgender and one cisgender individual, that makes sense. If they don’t, the depiction suggests parody or metaphor rather than reality, as a famous ESPN cover from 1999 illustrated:

But that scenario doesn’t match the reality of gay marriage as we know it in most cases.

None of these texts makes more than passing reference to the couple living life together after their wedding ceremony. The confusion between wedding and marriage is pervasive and it’s due in part to language, which brings us to the question of polygamy.

It is commonly said that legalizing gay marriage opens the door for legalizing polygamy. At first blush this may seem reasonable, as though expanding the definition of marriage as between one man and one woman to include marriage between two men or two women would remove barriers to state sanction of other nontraditional relationships. On consideration, however, it seems to do the opposite. In my view, legalizing gay marriage would shut the door on legal polygamy, firmly and decisively so, because it would confirm the government’s support of monogamous relationships. If that strikes you as a paradox, consider how Schopenhauer viewed the matter.

Arthur Schopenhauer (1788–1860) was one of history’s great observers of human conduct. Though rarely studied today, his influence on Nietzsche, Freud, Einstein, J. D. Salinger, and countless others is a matter of record. Classicists should all read — nay, trumpet — his essay on the value of learning Latin. The text I am about to quote from is not that gem, however; it is part of the radioactive essay that, late in life, he devoted to his views of women. (It’s a text I don’t think anyone should trumpet.)

“There can be no argument about polygamy,” wrote Schopenhauer in 1851:

It is useless to argue about polygamy, it must be taken as a fact existing everywhere, the mere regulation of which is the problem to be solved. Where are there, then, any real monogamists? We all live, at any rate for a time, and the majority of us always, in polygamy. Consequently, as each man needs many women, nothing is more just than to let him, nay, make it incumbent upon him to provide for many women. … The Mormons’ standpoint is right.

Schopenhauer is drawing a distinction that is familiar to all of us who read Thucydides. Logos and ergon, res and verbum, name and thing, rhetoric and reality. They often don’t line up. Monogamy refers to a sexual relationship but polygamy refers to a conjugal (legal, social) one.

Schopenhauer forces us to confront that ambiguity and the values we attach to it. His solution — perhaps offered in jest — is to institutionalize polygamy among men and women, and force men to take care of all the women they’re sleeping with. The obvious corollary is to institutionalize gay marriage, because in doing so the state would demonstrate that it values monogamy among gay men and women as highly as it values monogamy among straight men and women. If we put it in Schopenhauer’s terms, a vote by the state against gay marriage is a tacit vote by the state sanctioning gay polygamy.

Just as monogamy refers to a sexual relationship but polygamy to a conjugal (legal, social) one, so in English does “getting married” make us think of a wedding — a party, with flowers and a cake — whereas “marriage” ought to make us think of a legal relationship. Galeatum sero duelli paenitet, warns Juvenal. If you are thinking of getting married, you would do well to distinguish weddings from marriages, ceremonies from contracts, before you do. They aren’t the same thing, although they sometimes sound like it. That is one reason bakers and florists have been boycotted for refusing to bake cakes or provide flowers for gay weddings, though we do not hear of them refusing gay couples their services on other occasions.

This confusion brings us back to Roman law. Marriage in ancient Rome was forever aimed at producing legitimate children for the state. Other sexual relationships were surely common, but a gay partnership was not one of those the state dignified with legal recognition. Scholars sometimes point to a text in the Theodosian Code that condemns the seeming practice of “when a man becomes a woman’s bride” (cum vir nubit in feminam — whatever that means) to maintain that gay marriages — they mean weddings, but say marriages — were actually happening in Rome. Here it is (9.7.3, dated to 342 CE):

Impp. Constantius et Constans aa. ad populum. Cum vir nubit in feminam, femina viros proiectura quid cupiat, ubi sexus perdidit locum, ubi scelus est id, quod non proficit scire, ubi venus mutatur in alteram formam, ubi amor quaeritur nec videtur, iubemus insurgere leges, armari iura gladio ultore, ut exquisitis poenis subdantur infames, qui sunt vel qui futuri sunt rei. Dat. prid. non. dec. Mediolano, proposita Romae XVII kal. ianuar. Constantio III et Constante II aa. conss. (342 dec. 4).

Unfortunately, the first part of this text is unintelligible and the only way to fix the Latin is to presuppose what it means. The first two clauses are obviously corrupt, probably in several places (nubit could be cubit, in feminam could be infamem, viros could be viro or viris, proiectura could be pro iactura or porrectura[m], and so on — forever), and we can’t even tell if it’s supposed to be a statement or an indignant question. All we can tell is that whatever the behavior is, the law definitely doesn’t like it — and definitely doesn’t sanction it.

Stare decisis, abiding by precedent, is the cornerstone of American law. When we have precedents to abide by, it works well. If we don’t and we’re tempted to cast our net wider, to see how ancient societies that seem like ours did or might have settled modern social questions, we had better have a clear understanding of what those precedents are.

Ancient Rome offers no precedent for gay marriage, just as it offered no precedent for the abolition of slavery or the emancipation of women. Juvenal, Martial, Plautus — those texts are fascinating witnesses to transgender women or transphobia, while Nero’s purported abuse of Sporus is a monument to power unchecked. You should read them all — but don’t forget they have nothing to do with gay marriage.

It is a mistake to classify a whale as a fish. As a whale is not a fish, “gay marriage” in ancient Rome is not gay marriage today.

Whatever the Supreme Court decides over the coming weeks, therefore, one hopes that the personal relationships of ancient Roman women and men won’t be relevant, and that the personal relationships of American men and women will.

Michael Fontaine is Associate Professor of Classics and Associate Dean of the Faculty at Cornell University, where he teaches courses on Latin literature and Roman society. His newest book is Joannes Burmeister: Aulularia and Other Inversions of Plautus. Read more of his work here.

The views expressed in this article are those of the author and do not reflect the views of the Paideia Institute.