Classical Studies Newsletter, Volume X, Winter 2004

Roman Same-Sex Weddings from the Legal Perspective
By Prof. Bruce W. Frier

On occasion during the early Roman Empire, pairs of Roman men are described as having undergone complete traditional marriage ceremonies: weddings with all the trimmings, so to speak. The sources that mention such weddings are few, difficult to interpret, and invariably hostile. But they are also highly detailed, to such an extent that we can be confident this was a true social institution, not just an isolated or aberrational occurrence.

These sources, although long known, have only recently attracted much attention, in large part, obviously, because of the modern debate about same-sex marriage. The Roman sources on marriage between males are, by general agreement, among the best evidence we now possess for the emergence of long-term, egalitarian homosexual relationships (consensual unions between adults).

This short paper argues two propositions. First, although the participants in Roman same-sex weddings clearly took the proceedings seriously, they almost certainly did not regard such a wedding ceremony as a prelude to legitimate Roman marriage, which in any case would certainly not have resulted from such a ceremony. Second, when we probe more deeply into the relationship between the Roman wedding ceremony and legitimate marriage, a possibility of some interest emerges: the Romans, encouraged by the structure of legal rules concerning marriage, may have come to understand wedding ceremonies as a ritual that could be and was formally detached from legitimate marriage; and so the ceremony could be conducted when there was occasion to invoke, by way of forceful analogy, the broader social institution of marriage, but without making any necessary or specific claim to legitimate marriage itself. In the case of same-sex weddings, this possibility is interesting because it implies that the male participants in Roman same-sex weddings did not necessarily view legitimate marriage (or some semblance of legitimate marriage) as even the desired outcome of their ceremony.

The Sources

The earliest evidence for same-sex weddings concerns the Emperor Nero in A.D. 64 and 67. But it is more to the point to begin a generation later, with a poem of Martial published about A.D. 101. (Poem 12.42, see right). Martial describes the marriage of two men: the bearded Callistratus as bride, the rugged Afer (there is an obvious pun on rigidus) as husband. In his choice of names for the pair, Martial may imply disparity in status: Afer perhaps a freeborn Roman citizen, and Callistratus a freedman; but it hardly seems to matter. In any case, what Martial accentuates is the completeness of the ceremony: the torches, bridal veil, wedding hymn, and dowry. Within the epigram Martial uses this completeness as a bridge to his punchline: the marriage will have everything but issue. Martial's invocation of Rome suggests that his point here is moral.

In about A.D. 117, Juvenal wrote his second satire, a rambling tract that nominally targets the moral hypocrisy of Rome's social and intellectual elite, with particularly intense criticism of passive homosexual behavior. A long passage of this satire (2.117-142; see below) greatly amplifies Martial's spare epigram, with harsh invective replacing Martial's urbanity. Juvenal's target is a certain Gracchus, his name purposely evocative of the ancient Roman aristocracy. Juvenal may intend some specific person, an otherwise unknown noble in Domitian's court, but little depends on this. Rather, play is made of the fact that Gracchus is not only "a man of high birth and estate," but also a Roman priest. Yet Gracchus has recently married a male musician, a cornet-player ("or perhaps he'd performed on a straight horn," another obscene pun); and this musician is certainly his social inferior.

Here it is the aristocrat who assumes the role of bride, lolling in his husband's lap. In the Roman context, Juvenal's reversal of the social balance emphasizes Gracchus' moral depravity, since Romans commonly viewed passive homosexuals with particular contempt. The sole concession to everyday morality is that such weddings still take place outside public view; but Juvenal anticipates with horror the day when such a couple will celebrate their marriage openly and want it in the public record.

Again, stress is laid on the completeness of the wedding ceremony: the huge dowry and the nuptial tablets, the bridal gown and veil, the felicitations of guests, and the traditional banquet on the day following the wedding. Of especial interest are the final verses, in which Juvenal comments on the couple's inability to bear children. At first he describes this only as an "enormous irritant" to the male brides, since the absence of offspring will jeopardize the stability of their unions. But then Juvenal lurches toward a different point: their failure to procreate is, in fact, a part of "nature's plan." It is good, he thinks, that such couples will die without offspring.

Juvenal's indictment centers on what he regards as the shamelessness of the marriage, its flouting of tradition. But this indictment ostensibly runs no deeper than a generalized protest that the marriage ceremony is contrary to Roman tradition. Even Juvenal's final remarks on the couple's childlessness are, like the end of Martial's epigram, not expressly grounded in any broader assertion that same-sex marriages somehow undermine marriage and the family as legal and social institutions. Both poets instead presume that occurrence of the wedding ceremony itself will suffice to arouse either mirth or ire. Their protest, in other words, is not against same-sex unions themselves, but against the misappropriation of a venerable ceremony.

Same-sex marriage ceremonies of this type are first attested in A.D. 64 and 67, when the Emperor Nero, if our sources (all savagely critical) are to be believed, underwent two of them: the first, as a bride, to his wine steward, a freedman named Pythagoras; the second, as a groom to a castrated actor named Sporus who played the role of the bride. These marriage ceremonies conspicuously resemble the later weddings in Martial and Juvenal, their completeness, for instance, is emphasized in our sources. However, it remains unclear whether Nero's weddings should be regarded as having established the prototype for the later ones, or whether, instead, they simply participated in a tradition that was by 64 already established.

The Protocol for Same-Sex Weddings

As the sources stress, these same-sex weddings duplicate the colorful rituals of traditional weddings exactly, to the point of tiniest detail. Everything is here, including dowries attested by signed marriage tablets. Completeness is consistently a matter of capital importance in our sources. Indeed, these are among the only really detailed descriptions of Roman marriage ceremonies that survive to us. Completeness results in Roman same-sex ceremonies remaining strongly gendered even when the results might appear incongruous: in Martial's second poem, the bearded Callistratus in a wedding veil; or, in Juvenal, "a man of high birth and estate," a Roman priest, donning "flounces and a train and a bridal veil." In other words, the wedding ceremony is not adapted to the fact that the couple are of the same sex.

It is reasonably clear that through this ceremony the couple undertakes some form of long-term commitment. Thus, Juvenal's reflections on the couple's inevitable childlessness, at the end of the quoted passage, are hackneyed in themselves but would otherwise lack point. Roman authors who evaluate these ceremonies consider them objectionable per se, and not simply because, for instance, one male partner is assuming a bride's dress and role. In sources such as Martial, 12.42, any gender distinction recedes into the background and ridicule is directed toward both parties, indicating that the wedding itself is being criticized; and it seems clear that ancient revulsion over Nero's marriage to Sporus (in which Nero took the role of husband) was not based solely upon the boy's having been first castrated.

The Juvenal passage clearly indicates that these same-sex weddings were performed in private, presumably from fear of offending public opinion. This is a strong indicator that the general public viewed with strong disapproval the enactment of a wedding ceremony outside the context of entry into legitimate marriage; hence, Tacitus' outrage that Nero's marriage to Pythagoras had been performed openly (Ann.15.37.4).

Finally, neither Martial nor Juvenal appears to anticipate that a reader would not previously have heard of such same-sex weddings. Although they may not have been common, they were at least frequent enough to have been a topic of discussion in Rome. Unfortunately, little definite can be said about the social background of the participants in ordinary same-sex weddings, but no source indicates that the man playing the bride was routinely of lower social status than the groom, or vice versa.

Insofar as we can tell, Roman same-sex weddings occurred within a fairly narrow interval of time, the generation from the reign of Nero to that of Domitian. Perhaps not coincidentally, this era also corresponds to the high point of the public visibility of homosexuality at Rome. At this time, consensual homosexual relationships between free adults were almost certainly not criminal in themselves; and even if, which is unlikely, they were technically illegal, the law was generally not enforced. However, especially passive homosexual behavior was publicly discouraged and stigmatized in various ways.

Despite this broad tolerance, celebration of a same-sex wedding may have strained the limits of Roman tolerance. No emperor after Nero imitated his practice, not even Hadrian whose relationship with Antinous attained such a degree of notoriety as to provoke at Rome what may have been a generalized reaction against overt homosexual behavior.

Not Legitimate Marriages

The fundamental problem with same-sex marriage ceremonies is to establish what the participants in these ceremonies thought that they were accomplishing: why they went to such extraordinary lengths to duplicate traditional Roman marriage ceremonies, and what they hoped to achieve thereby. It is no easy task to answer these questions, since our sources are all implacably hostile to the practice, and no surviving source even attempts to describe these weddings from a more sympathetic standpoint.

The historian John Boswell maintained that these marriages "were legal and familiar among the upper classes" - "formal unions - i.e., publicly recognized relationships entailing some change in status for one or both parties, comparable in this sense to heterosexual marriage." Boswell's position is not entirely clear, but he seems to have believed that full legitimate marriage resulted; at any rate, subsequent historians have understood him to have held this, and his view has gained some currency in modern scholarship on the history of homosexuality.

But most Roman historians disagree. It is true that no Roman source explicitly forbids same-sex marriage. But that was also true in most American states until quite recently. Still, American courts have universally rejected the argument that what is not forbidden must be legally permitted. In doing so, they have reasoned from an assumed legal definition of marriage; for instance, in 1971 the Minnesota Supreme Court held that the statute "which governs 'marriage,' employs that term as one of common usage, meaning the state of union between persons of the opposite sex." American courts have therefore instead preferred to discuss same-sex marriage in broader constitutional terms.

The Roman jurists would probably have accepted a similar definitional argument. The jurists constructed the entire Roman law of marriage around the assumption that marriage was between a man and a woman. The most explicit source in this regard comes from the jurist Modestinus, who describes marriage as "the joining of a male and a female, and a partnership in their entire lives, a sharing of divine and human law." Modestinus dates to around A.D. 230, one of the last classical Roman jurists. Noteworthy is the jurist's stress on sex: the union, not "of a man and a woman," but "of a male and a female" (coniunctio maris et feminae).

This description of marriage implies that the jurists, had they ever been faced with serious inquiry as to whether same-sex marriages were valid, would quite probably have answered in definitional terms, that marriage was "inter-sexual" by its nature; and that attempts to effect a same-sex marriage were therefore necessarily without legal consequence. It is therefore improbable that same-sex marriage ceremonies could have led to legally valid marriages in Roman law. Nor, to the best of our knowledge, was any such claim ever made in antiquity.

The Marriage Ceremony "Floats Free"

But the legal invalidity of Roman same-sex marriage ceremonies only deepens the mystery; for we are left with the further problem of determining what, then, the participants in such ceremonies were trying to accomplish. The common modern view that these ceremonies were only a sham or parody might seem appealing when applied to Nero, whose contempt for the stuffiness of Roman upper-class traditions was legendary. But this view is less attractive when we consider Martial and especially Juvenal, whose complaint is precisely not that the participants in same-sex marriage ceremonies were directly and deliberately mocking Roman mores. On the contrary, what appears to offend especially the arch-conservative Juvenal is precisely that the participants take the ceremonies all too seriously. Their sobriety of intent leads Juvenal to rail that the gods, through the complicitous silence of their failure to rain down retribution, have already forsaken Rome.

Still, it is a mistake, I feel, to treat these Roman ceremonies as closely comparable to modern commitment ceremonies, which serve as an expressly non-legal means for same-sex partners publicly to undertake a long-term personal relationship patterned after legal marriage, and which are often adapted to a considerable extent from "inter-sexual" marriage ceremonies. Although long-term commitment is doubtless implied by the Roman same-sex wedding ceremonies, what remains far more unusual about them is their absolute and undeviating fidelity to the form of the traditional ceremony, despite potentially grotesque aspects of the result. What needs explanation, therefore, is why this fidelity to tradition was so important.

Especially because surviving sources on Roman same-sex weddings are hostile to the practice, we will never understand it from the internal perspective of the participants. Nonetheless, a possible avenue to fuller understanding may be to follow the emphasis of our sources, who repeatedly stress, not that Roman same-sex couples are entering into marriage-like unions, but that they are using traditional marriage rituals; it is the use of the wedding ceremony, and not the union itself, that occasions scorn or outrage. But it is precisely in this area that Roman marriage law differs most signally from its modern counterpart.

Today, most legal systems require a certain process before marriage. This process typically unfolds in two stages: the couple must first obtain a marriage license (the government uses this license to make sure the couple are legally capable of marriage and also to establish an official record); and then they must solemnize their marriage through a formal ceremony conducted by a designated civil or religious authority. Law is therefore deeply implicated in the process whereby marriage occurs.

By contrast, Roman law is almost altogether lacking in formal process requirements. No prescribed ceremonies or formalities of any kind were legally necessary in order to create a valid Roman marriage. First, the government did not have any sort of licensing procedure, nor did it even provide a means for registering marriages. In principle, therefore, marriage was largely a private arrangement occurring outside the purview of state authority, although, of course, the government reserved the right to declare supposed marriages null and void after the fact. Second, the Roman jurists and emperors alike also emphasize that no formality or marriage ceremony of any kind was required for a legal marriage. Indeed, not even cohabitation or sexual consummation was required.

From a modern perspective, the lack of required formalities is certainly the single most distinctive feature of Roman marriage; public supervision and record of the process is entirely missing. The problem that the Romans then faced, however, was that, in the absence of formalities, there was no obvious means to determine the exact onset of legitimate marriage. For example, it often was necessary to determine whether, in a given case, a relationship between a couple was, at some specific point in time, actually a marriage, rather than, for instance, simply a long-term extramarital affair; and this problem became especially acute after adultery was criminalized in the early Empire.

To solve the problem, the jurists created an informal substitute for legal formalities. They required that the couple at least exhibit, in their relationship, public and private conduct consistent with the existence of a marriage. Several jurists describe this requirement as affectio maritalis, literally "marital affection." In practice, this amounts to a somewhat vague demand for evidence that the couple are treating one another as spouses. The requirement could be satisfied in many ways. For instance, the existence of a marriage could be inferred from such facts as the relative social positions of the two parties, their cohabitation in the husband's home, other indicators of the conduct of their domestic life, and the general repute of their marriage among their families or in the neighborhood.

At least among the Roman upper classes, undoubtedly the most frequently used form of evidence for marital intent was the occurrence of a marriage ceremony complete with an engagement, private marriage documents, and the provision of a dowry for the bride, what the jurists briefly refer to as the deductio of the bride into her husband's house. Nonetheless, because such rituals were only loosely connected to the legal inception of marriage, a possibility arose that is scarcely conceivable in the modern world: the full wedding ceremony and the ensuing cohabitation could be, in effect, culturally detached from the legal institution of marriage. If this happened, the marriage ceremony could then be used in ways that invoked the more general social implications or the imagery of weddings, even though the parties themselves did not thereby intend to create, and were not understood by others to be creating, an actual marriage. In short, the Roman marriage ceremony may have "floated free" from the legal institution of marriage, in a fashion and to a degree that may today seem quite surprising.

That this hypothesis is not far-fetched is shown by an incident roughly contemporary with Nero's same-sex marriages. It occurred in A.D. 47. Messalina, the dissolute wife of the Emperor Claudius, entered into a conspiracy with a Roman nobleman named Gaius Silius. It appears that they aimed to overthrow Claudius. Their plot came to fruition while Claudius was off attending to official duties in Ostia, Rome's port city. As Tacitus and other sources report, Messalina married Silius in a ceremony complete with auspices and sacrifices to the gods, the customary wedding garments, a wedding banquet, and a dowry. Although some scholars have expressed doubts, Tacitus is emphatic in stating this wedding ceremony in fact occurred:
"Messalina was attracted by the idea of marriage (to Silius) because of its sheer outrageousness, a last resort in which a wastrel takes pleasure. So, waiting only until Claudius went off to Ostia for a sacrifice, she celebrated all the rituals of marriage. To some, I know, it will seem incredible that in a city where everything is known and nothing kept secret, any persons could have felt themselves so secure; and far more incredible that, on the appointed day and before invited witnesses, the Consul Designate (Silius) joined with the Emperor's wife nominally 'for the purpose of raising children'; and she attended to the taking of auspices, put on the bridal veil, and sacrificed to the gods; and they lay among their guests, embracing and kissing, and then spent the night in marital passion. But what I write is no invention to amaze my readers, but only what my elders heard and wrote down." (Annales 11.26.3-27.)

The marriage of Messalina and Silius is impossible to comprehend by the usual standards of Roman private law. Since (our sources insist on this) Messalina had not first divorced Claudius, she was still legally married to him at the time; the jurists usually require at least an effort at conveying a repudiation to the divorced spouse. But of course we are not in the ordinary realm of Roman law. Messalina's marriage to Silius was evidently in itself an act of high treason, the effective proclamation of a coup against Claudius. What is significant is that a marriage ceremony was the vehicle used to mount this strange coup.

In this case, the wedding ceremony appears as detached from the institution of legitimate marriage. And yet, in context, significant connotations of marriage have been borrowed and creatively refashioned. The wedding of Silius and Messalina expresses a political union that is apparently meant to evoke the emotional aspects of marriage. Tacitus' clear outrage at such a misappropriation of the traditional marriage ceremony clearly resembles, as well, the outrage of Juvenal and other authors regarding the same-sex weddings.

Property and Procreation

How is it that the legal institution of marriage (iustae nuptiae, "legitimate marriage") became detached in this fashion from the social institution of marriage, including the wedding ceremonies that usually marked its initiation? I have already suggested an answer: the Roman government, for whatever reasons, declined to oversee the process of marriage through licensing or even through registration, so that marriage arose as a largely private event outside of government scrutiny. But a deeper answer to the question can perhaps be obtained by examining two other prominent aspects of the Roman law of marriage: its limited effects on the property holdings of spouses, and its uneasy relationship to procreation as an intrinsic aim of marriage.

First, as to property, modern advocates of same-sex marriage are complexly motivated not just by their wish that homosexual couples be recognized as socially and legally acceptable, but also by their desire to acquire important rights and privileges that law bestows only on married partners. In modern law, such rights and privileges are numerous and exceptionally important to the exercise of joint life; they include, for instance, shared estates, tax advantages, access to spousal health care, and so on. These are the legal "incidents" of marriage, and in some instances their absence can have extremely harsh consequences for homosexual couples.

Classical Roman law could not be more different. The classical form of marriage had few personal consequences for the couple, in the main because it was so easy to dissolve. Like the process of marriage, divorce was entirely unregulated by the State; either party could leave the marriage at any time, the only requirement being that notice to the other party first be given or at least attempted. Because marriage was such a fragile institution, community of property was not imposed by law. The two partners preserved their separate estates throughout marriage, and while married they were unable even to co-mingle their assets through gifts.

During marriage, a wife did not take the name of her husband. She remained legally within the family of her birth, and at no time was she subject to the domestic power of her husband. Remarkably, a wife had no legal claim on her husband for maintenance; nor was state-ordered alimony available after divorce.

In modern law, marital rights and privileges are intended to encourage the formation of traditional families; and divorce is also legally regulated in part to discourage the overhasty dissolution of these families, though in recent decades this goal has markedly declined in importance. The Roman law of marriage lacked both these purposes, except to the extent that the marriage legislation of Augustus bestowed some indirect material benefits on persons who were married.

Under these circumstances, it is worth asking what legitimate Roman marriage was for. The answer to this question is easily given. In Rome, as in pre-modern societies generally, the traditional institution of marriage was closely tied to procreation, the bearing and raising of legitimate children as heirs to the husband. Rome itself provides considerable evidence for the existence of this age-old link. From a legal perspective, as has often been observed, the primary purpose, or at least the primary consequence, of legitimate marriage was precisely to legitimize the offspring of such marriages. The centrality of the association was brought into much sharper focus by Augustus' family legislation, a series of statutes that fostered marriage and the bearing of children as a matter of public policy, and also discouraged extra-marital sex.

The close connection between marriage and childbearing obviously helps to explain the comments of Roman authors who react negatively to same-sex marriage ceremonies. Nonetheless, as scholars on Roman marriage have often noted, Roman sources suggest that at least among the upper classes belief in the procreative purposes of marriage had waned during the early Empire, in favor of more individualistic conceptions of marriage emphasizing social and sexual companionship between husband and wife as at least an equally important goal.

This drift in conceptions of marriage is not a simple progression; at any time in the early Empire, our sources express a range of opinion on the nature of marriage. Still, it is important to note that funeral epitaphs display much the same range of opinion, indicating that intellectuals may reasonably well represent the views of the upper classes.

For their part, although the Roman jurists clearly accept the pronatalist policies of the Caesars, their acceptance does not translate into a narrow association of marriage with procreation. Further, the Roman law of legitimate marriage remains predominantly retrospective in its application, to an extent that may surprise a modern observer. Rather as with the older forms of common law marriage, the existence of a legitimate marriage in any specific case is largely determined after the fact, when a couple is already established but a related question has arisen about, for instance, dividing property between the couple or determining the legitimacy of their offspring. Of course, Roman couples, when entering into marriage, were doubtless usually aware of the legal requirements for marriage; but these requirements were not nearly so strongly foregrounded as in modern marriage.

There is, then, a curious lack of fit here: while the wedding ceremony emphatically looks forward to the creation of a marriage, Roman marriage law usually looks backward, upon a putative marriage that, much more often than not, has already ended when question about its validity arises. In this respect, the social institution of marriage, and in particular the ceremonies that initiated a marriage, to a large extent float free of the legal institution B a situation that is especially awkward because legitimate marriage existed in uneasy competition with other socially recognized forms of coupling, such as concubinage. In short, a Roman couple, if queried as to whether they were married, might have responded, in complete good faith, that they were married (in the social sense) even though their union would predictably not have survived a legal challenge.

It is precisely this ambiguity that may be responsible for much of the angry defensiveness with which authors such as Tacitus and Juvenal criticize appropriations of the Roman wedding ceremony for purposes other than traditional marriages. Nor is it unreasonable to suppose that the participants in such ceremonies were well aware they would provoke widespread hostility. Indeed, it may even be fair to posit that these same-sex ceremonies were intended, at least in part, as deliberately subversive of the traditional social institution of marriage B yet another indicator of the extraordinary intellectual ferment characterizing the imperial city of Rome during the first century A.D.

Index of Topics / Return to the Classics Homepage

  • Letter from the Chair
  • Same Sex Marriages in the Ancient World
  • Papyrus Discovery
  • Digging up the Past
  • A Tale of Two Else Lectures
  • Poems of a Presocratic Guru
  • Bioethics: Ancient and Modern