“The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” As a result, 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?”

As a lover of anthropological monographs and history, the above quote from Chief Justice Roberts is utter horseshit.

The continuity of marriage through time and space is reductive and illusory. The Han were polygynous if they could afford it. The Bushmen “marry” and “divorce” by co-habitating, then not co-habitating. Aztec marriages were arranged within kin groups. I have no flipping idea what the Carthaginians did, but I bet you my left testicle it wasn’t an anachronistic simulacrum of an American marriage, with matching expectations and legal responsibilities with regards property and to child raising, sexual practices, domestic economy, et cetera. Given that what I know of Carthage is basically Dido, Hannibal, and bronze god Moloch, marriage probably involved setting things on fire, then getting screwed over by a Roman. Or vice versa.

Nor is marriage and the husband-wife pairing the “basis” for human society. FAMILY is the basis, and the shape of what is family varies culture by culture and even on an individual basis. Nor are the social dyads that form families—husband-wife, brother-brother, cousin-cousin, uncle-nephew—weighted the same from place to place. “Family” used to mean the lolling, many-branched mass of cousins you intermarried with to keep the land titles closely-held that is run half like a corporation and half like a “Game of Thrones” episode.

Marriage as a legal construct—the determination of what shit is shared and what shit is divided, plus inheritance issues—is nearly universal. But that’s a shallow level of universality. Even constraining to the cultural arc of what’s now characterized as “traditional”—that is, ritually Christian, culturally Western Europe, imbedded in post-industrial economy with contract labor—the legal components that make up marriage keep changing, because the dynamics of family and shit distribution are getting more complicated as humans: have more personal possessions; more personal autonomy; live longer lives; move around more; and have the option to quit relationships without accruing personal or familial shame.

Adoption. Property distribution during divorce. Alimony. Palimony, Spousal rape laws. Spouse abuse laws. Domestic partnership. Common law marriage. Any and all guardianship agreements. Divorce and custody agreements. Full and freely given consent by both parties, aka, “your daughter is not a poker chip with tits, Rodrigo Borgia.”

This mess is the ship of Theseus. We’ve been swapping the small parts of marriage and family for so long, bit by bit, that we haven’t noticed that whole damn thing has been replaced. This is not the good old days when marriage was between a man and another man with a daughter. When we wed we create contracts between individuals that are enforced in courts, rather than agreements between families that are enforced through massacres at weddings.

The complexity of our legal formulations of family and marriage just reflect how complex our world is. We have so many options, and that results in a need to structure them. The law is following the norms, and the norms are broadening because people’s experiences are broadening. Legal same-sex marriage is just another step in a continuity of people getting together, then having to create a formal system of co-owning shit.