Martial wrote this epigram about us (12.42):
Barbatus rigido nupsit Callistratus Afro
hac qua lege viro nubere virgo solet.
Praeluxere faces, velarunt flammea vultus,
nec tua defuerunt verba, Talasse, tibi.
Dos etiam dicta est. Nondum tibi, Roma, videtur
hoc satis? Expectas numquid ut et pariat?
Bearded Callistratus married rugged Afer in the usual form in which a virgin marries a husband. The torches shone in front, the wedding veil covered his face, and, Thalassus, you did not lack your words. Even the dowry was declared. Are you still not satisfied, Rome? Are you waiting for him to give birth? (trans. D. R. S. Bailey)
We’re both men; can we be married according to Roman law?
Callistratus and Afer.
Dear Callistratus and Afer,
To determine the existence of a valid Roman marriage, we need to consider three aspects of its creation: the capacity of the parties to marry one another, their mutual consent (or that of their parents/ guardians) to the creation of the union, and the process by which it arose.
On first sight, I am unable to find any express prohibition on same-sex marriage in my sources; but this doesn’t mean that I consider them valid! I think that a Roman marriage must be inter-sexual by definition (i.e., between a man and a woman): after all, surely one of its central purposes is procreation? Of course, this is not the only consideration, but as my friend Modestinus said:
D.23.2.1 (Mod. 1 reg.):
Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris communicatio.
Marriage is the joining of a male and a female, and a partnership in their entire lives, a sharing of divine and human law (trans. B. W. Frier).
Ulpian even considered the institution to be derived from the ius naturale (natural law):
D.126.96.36.199 (Ulp. 1 inst.):
Ius naturale est, quod natura omnia animalia docuit: nam ius istud non humani generis proprium, sed omnium animalium… hinc descendit maris atque feminae coniunctio, quam nos matrimonium appellamus, hinc liberorum procreatio, hinc educatio…
Natural law is that which nature has taught to all animals; for it is not a law specific to mankind but is common to all animals… out of this comes the union of man and woman which we call marriage, and the procreation of children, and their rearing (trans. Watson).
I think, therefore, that even though it is not expressly stated anywhere that men cannot legally marry one another, it is inherent in the very definition of marriage that the union must be between a man and a woman.
This post is inspired by Bruce W. Frier’s ‘Roman Same-Sex Weddings from the Legal Perspective’: an article penned 15 years ago but which has only just been made available via his academia.edu profile. It is not clear how common same-sex relationships affirmed by marriage ceremonies were (at least during the Principate); but some scholars (e.g., Williams) have described them as ‘not particularly unusual’.
Besides the legal invalidity of same-sex marriages (on which most scholars agree), the question remains as to what the parties to ceremonies like that of Callistratus and Afer were trying to achieve. Frier’s argument that the parties were conscious that their union would have no legal consequences is persuasive. Rather, men who conducted these ceremonies were trying to invoke the broader social institution of marriage for different purposes. These relationships were more, however, than a frivolous parody; it is likely that the parties to these relationships regarded themselves as married in the social sense, even if they were not seen as a couple in the eyes of the law.