THE PURPORTED SAME-SEX MARRIAGE IN ROMAN LAW

The problem of same-sex marriage is not new. Literary sources show that wedding ceremonies between males indeed occurred in Imperial Rome, some of them involving Emperors and aristocrats. The first question arising is this: were they legally binding? After a careful analysis of Roman legal sources, the conclusion is negative. Matrimonial ceremonies and cohabitation were a clue to affectio maritalis, but this could exist without them. Moreover, in legal texts, the rituals suggesting the affectio always presupposed and involved different-sex unions. Then, a second question must be posed: why did Roman Law deny validity to a socially accepted phenomenon? We think the answer lies in the following reasoning: socially spread homosexuality, even if involving powerful people, wasn't enough to change the concept of matrimonius. Love and companionship weren't aliens to the Roman conceptions of marriage, but to Roman Law same-sex unions were a private matter and there was no public interest in their regulation. It was not discrimination but treating differently what was inherently different. If there is a contribution of Roman Law to nowadays controversies, that one is a deeply rooted concept of different-sex marriage, aparted from biblical teachings. A Court trying to change it is engaging in judicial policymaking - but, in a democratic system, this role belongs to legislatures elected by the people and not to non-elected branches. That's why Obergefell v. Hodges and similar decisions avoid popular choice and impose one of the possible solutions.