Same-sex marriage now and then
By Rachel Hope Cleves
Same-sex marriage is having a moment. The accelerating legalization of same-sex marriage at the state level since the Supreme Court’s June 2013 United States v. Windsor decision, striking down the Defense of Marriage Act, has truly been astonishing. Who is not dumbstruck by the spectacle of legal same-sex marriages performed in a state such as Utah, which criminalized same-sex sexual behavior until 2003? The historical whiplash is dizzying.
Daily headlines announcing the latest changes to the legal landscape of same-sex marriage are feeding public curiosity about the history of such unions, and several of the books that top the “Gay & Lesbian History” bestsellers lists focus on same-sex marriage. However, they tend to focus on the immediate antecedents for today’s legal decisions, rather than the historical roots of the issue.
At first consideration, it may seem anachronistic to describe a same-sex union from the early nineteenth century as a “marriage,” but this is the language that several who knew Charity Bryant (1777-1851) and Sylvia Drake (1784-1868) used at the time. As a young boy growing up in western Vermont during the antebellum era, Hiram Harvey Hurlburt Jr. paid a visit to a tailor shop run by the two women to order a suit of clothes made. Noticing something unusual about the women, Hurlburt asked around town and “heard it mentioned as if Miss Bryant and Miss Drake were married to each other.” Looking back from the vantage of old age, Hurlburt chose to include their story in a handwritten memoir he left to his descendants. Like homespun suits, the women were a relic of frontier Vermont, which was receding swiftly into the distance as the twentieth century surged forward. Once upon a time, Hurlburt recalled for his relatives, two women of unusual character could be known around town as a married couple.
There were many who agreed with Hurlburt. Charity Bryant’s sister-in-law, Sarah Snell Bryant, mother to the beloved antebellum poet and journalist William Cullen Bryant, wrote to the women “I consider you both one as man and wife are one.” The poet himself described his Aunt Sylvia as a “fond wife” to her “husband,” his Aunt Charity. And Charity called Sylvia her “helpmeet,” using one of the most common synonyms for wife in early America.
The evidence that Charity and Sylvia possessed a public reputation as a married couple in their small Vermont town, and among the members of their family, goes a long way to constituting evidence that their union should be labeled as a same-sex marriage and seen as a precedent for today’s struggle. In the legal landscape of the early nineteenth century, “common law” marriages could be verified based on two conditions: a couple’s public reputation as being married, and their sharing of a common residence. Charity and Sylvia fit both those criteria. After they met in the spring of 1807, while Charity was paying a visit to Sylvia’s hometown of Weybridge, Vermont, Charity decided to rent a room in town and invited Sylvia to come live with her. The two commenced their lives together on 3 July 1807, a date that the women regarded as their anniversary forever after. The following year they built their own cottage, initially a twelve-by-twelve foot room, which they moved into on the last day of 1808. They lived there together for the rest of their days, until Charity’s death in 1851 from heart disease. Sylvia lasted another eight years in the cottage, before moving into her older brother’s house for the final years of her life.
Of course, Charity and Sylvia did not fit one very important criterion for marriage, common-law or statutory: that the union be established between a man and a woman. But then, their transgression of this requirement likened their union to other transgressive marriages of the age: those between couples where one or both spouses were already married, or where one or both spouses were beneath the age of consent at the formation of the union, or where one spouse was legally enslaved. In each of these latter circumstances, courts called on to pass judgment over questions of inheritance or the division of property sometimes recognized the validity of marriages even where the spouses could not legally be married according to statute. Since Charity and Sylvia never argued over property in life, and since their inheritors did not challenge the terms of the women’s wills which split their common property between their families, the courts never had a reason to rule on the legality of the women’s marriage. Ultimately, the question of whether their union constituted a legal marriage in its time cannot be resolved.
Regardless, it is vital that the history of marriage include relationships socially understood to be marriages as well as those relationships that fit the legal definition. Although the legality of same-sex marriage has been the subject of focused attention in the past decade (and the past year especially), we cannot forget that marriage exists first and foremost as a social fact. To limit the definition of marriage entirely to those who fit within its statutory terms would, for example, exclude two and a half centuries of enslaved Americans from the history of marriage. It would confuse law’s prescriptive powers with a description of reality, and give statute even more power than its oversized claims.
Awareness of how hard-fought the last decade’s legalization battle has been makes it difficult to believe that during the early national era two same-sex partners could really and truly be married. However, a close look at Charity and Sylvia’s story compells us to re-examine our beliefs. History is not a progress narrative, we all know. What’s only just become possible now may have also been possible at points in the past. Historians of the early American republic might want to ask why Charity and Sylvia’s marriage was possible in the first decades of the nineteenth century, whether it would have been so forty years later or forty years before, and what their marriage can tell us about the possibilities for sexual revolution and women’s independence in the years following the Revolution. For historians of any age, Charity and Sylvia’s story is a reminder of the unexpected openings and foreclosures that make the past so much more interesting than our assumptions.
Rachel Hope Cleves is Associate Professor of History at the University of Victoria. She is author of Charity and Sylvia: A Same-Sex Marriage in Early America.