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Mr. Justice Roberts and the Aztecs

28 June 2015

In his dissent to the recent U.S. Supreme Court ruling on same-sex marriage*, Chief Justice John Roberts carped — among other irrelevancies — that:

… 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…

While I haven’t consulted my expert on the U.S. Supreme Court, I am reasonably sure this is the first time “Aztec” (or Mexica) law has ever been cited in a U.S. courtroom.  And … I might add… cited incorrectly.

Tying_the_knotWhile we hardly have the legal records, we have a good idea of court procedures among the Aztecs, and at least the outline of their legal code.  M.C. Mirow’s Latin American Law: A History of Private Law and Institutions in Spanish America (University of Texas Press, 2004) begins its discussion of its subject with a discussion of… specifically, Mr. Roberts… Aztec law.  The Aztecs had a system not all that different from ours… with a “Supreme Legal Council” which oversaw district courts, and capulli (village or “urban ward”) courts … the latter of which heard marriage cases.

Based on what court documents we have, as well as what we know of Aztec marriages, they were hardly of the “one man-one woman” and “til death do us part” variety.  Polygamy (especially among the upper classes) and divorce were common, as were arranged marriages among widows and her surviving brothers-in-law (already married or not).

Homosexuality was, apparently, in the criminal code, but given that cases involving homosexuality were only taken up by the Supreme Legal Council, one is left wondering how often a case was even heard.  This doesn’t mean that there were homosexuals in Aztec society.  Lamentations of rampant “sodomy” among the indigenous Americans by early Spanish writers (mostly clerics) argue that the opposite was the case.  As does the plethora of words in Nahuatl for gay sex acts.  As I have noted before indigenous Americans (including subject people of the Aztecs) did not always define gender (and gender roles) the way we do.  Among the Zapotecs, marriages between biological males, one of whom is a muxe (a “two spirit person”… biologically male, but recognized culturally as a female), would not technically be “gay marriage”, but are — to our way of thinking — “same-sex” marriages.  How such marriages are treated in Mexican courts when it comes to inheritance rights, I can’t say, but being a matter of indigenous “usos y costombres”, the two parties are seen as a married couple.

Although the “Aztec” courts still functioned, at least at the capulli level, into the colonial era, they were rather informal proceedings, more like a Justice of the Peace court, and we do not have the records.  While we have information based on interviews of the “one percenters” of the Aztecs, thanks to Padre Saguhan and Motolina, we really know very little about how ordinary Mexicas conducted their intimate affairs.  We know they regularly resorted to prostitutes (male and female) and that the customary forms of marriage continued.  But, unless the couple sought the legal recognition of the Crown, by way of the Church (which most people didn’t need), we would have no record.  It’s assumed, based on other cultures of the time that given that work was often divided by gender, a family without children of one gender would simply assign the opposite gender to a child… that is, a family of girls needed someone to do “man’s work”, or a family of boys someone to make the tortillas and keep the family hearth… and, as with the Zapotecs, likely just raised the child to be  another gender.  Or… as people always have found… they were attracted to persons of the same gender.  Such children could have married to a person of the same biological gender, or … were they to chose the opposite gender, might have been gay in our modern sense.

We know, also, that the Aztecs had gender segregated schools… with teenaged boys from the upper class, and promising lads from the capulli classes… boarded under the not-particularly-watchful eyes of the Aztec priests.  From what we know of such institutions throughout history, of course, there was male bonding beyond the sports field.

Mr. Justice Roberts may or may not be correct in saying the Aztecs did not recognize same-sex marriages, but one may judiciously say, he doesn’t have a fuckin’ clue!

*  Why assume two people of the same gender are marrying only because of their sexual orientation?  Gays have married “straights” for centuries for reasons having nothing to do with intimacy, and everything to do with property, inheritance, security, and/or status.  I don’t see anything that presumes persons of the same gender might not marry each other for the same reasons.

Outside Sources:

Aztec Family Law, Tarlton Law Library, University of Texas

de Landa, Fray Diego.  Relacion de las cosas de Yucatan (1567)

Mirow, M.C. Latin American Law, pp 1-5

Joyce, Rosemary, Ph.D., “Aztec Marriage: A Lesson for Chief Justice Roberts” Psychology Today (26 June 2015)

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