Time for Anthropology 101 at SCOTUS?

It’s kinship week in my Social Theory class, so I thought I'd start my blogging in earnest by taking a quick look at Justice Robert’s dissent in the recent same-sex marriage case.

Justice Robert’s writes in his first paragraph:


The Court invalidates the marriage laws of more than half the States and orders the transformation of a social  institution that has formed the  basis of human society for millennia, for the Kalahari Bushmen and the Han   Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

I won’t go into the details of marriage practices in these societies –for more info here, take a look at Ishaan Tharoor’s blog in the Washington Post .

Justice Robert’s statement makes me wonder if he ever took an anthropology course in his long academic career. I’m thinking not.

(1) For starters,  “laws” might not be the best term to describe the rules around human marriage practices, as this term implies a level of legal institutionalization not present in all human societies over time.

(2) Anthropologists situate marriage within the concept of “kinship,” which extends beyond marriage to include the family, gender relations, household economics, descent (who's related to whom), and many other social relationships. Kinship systems vary considerably cross-culturally. For a good overview of anthropological kinship theory, see Linda Stone’s Kinship and Gender: An Introduction.

(3) Take a look at the Human Resource Area Files World Cultures database and George Murdock’s Ethnographic Atlas. They show that prior to recent times, various forms polygamy were in fact much more common than monogamy.  So much for marriage always being one man  + one woman!

Certainly colonialism and the spread of Christianity have increased the prevalence of monogamy throughout the world. And as Justice Roberts almost got right, kinship is a central social institution throughout all human societies. But Justice Robert’s conclusions are a stretch, and I’m left wanting a tighter analysis from the Chief Justice of the US Supreme Court!