This article originally appeared on VICE GREECE
Herennius Modestinus was, according to Wikipedia, "a celebrated Roman jurist, a student of Ulpian who flourished around 250 AD." A legal adviser to the king, he was mainly concerned with what is now largely known as "family law." That's not just a bit of obscure trivia—in Greece, Modestinus continues to legislate to this very day, having a say on contemporary issues such as same-sex marriages.
On June 3, 2008, on the tiny island of Tilos, two same-sex weddings between two men and two women were carried out by the now deceased mayor Tasos Aliferis. Before going ahead with the ceremony, Aliferis had a long meeting with the municipality's legal adviser at which they reviewed the legality and legitimacy of these marriages. Under the "Family Law" section—as revised in 1981—they found no clear prohibitions concerning the union of two people of the same sex.
The very next day however, a Greek prosecutor requested for the weddings to be annulled on the grounds that they were illegal. Seven years later, the legal battle that has ensued between the couples and the Greek Supreme Court seems without an end in sight. I spoke to the couples' lawyer, Vasilis Hirdaris, who thinks there is a good chance they will be soon taking their case to the European Court of Human Rights.
"Because there were no legal grounds [for the annulment], the Greek prosecutor's entire case was based on an interpretation of a piece of ancient legislation which did not actually rely on anything concrete, but was instead based on what could have been the lawmaker's intent at the time he passed the law," explained Hirdaris. "That legislation was based on the teachings of Modestinus. The prosecutor basically said that the lawmaker had intended the concept of 'newlyweds' to refer to a union between a man and a woman—although this is not explicit in the law itself. The wording is clear and same-sex persons are not prohibited to marry. Nevertheless, the court went ahead and relied on that interpretation, disregarding the fact that Modestinus lived in the early Christian period, when wedding ceremonies were a religious function. Modestinus could not have been aware of the concept of civil marriage."
In a nutshell, the lawyers who annulled the two marriages were unable to find a clear reference within the law that says the concept of marriage should refer to different sex couples. So they turned to Modestinus.
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The ruling specifically states that "in regards to the term 'newlyweds,' the writers—both of the past and the present—who interpreted the Civil Code, suggest that the definition of marriage as given by the Roman jurist Modestinus, under the influence of Christian religion, concerns men and women." It also states that marriage "is the union of man and woman, under god, in a human and just society." It follows logically then, that in the interpretative literature of the Greek civil code, gender difference is referred to as the necessary and legal condition of marriage, despite the fact that several authors point out that this is not explicitly stated in the law.
I asked Hirdaris if ancient definitions are often used in the trial of contemporary issues. "The court considers that law should be interpreted in accordance with the present," he replied. "It must adapt legislation to current circumstances and take into account the manners and customs of the period so that the law can live up to the passing of time. You can not use a piece of legislation that was passed in the 1950s—as the Civil Code does—based on a legal thought dated ca. 250 AD. It is regressive and it shows that there are no grounds on which one can refute the marriage of same-sex couples."
In regards to the motive, Hirdaris believes that "it reflects the majority of the Greek people who view the subject of same-sex marriage with some hesitation. But the concept of human rights is not for the majority—it's for minorities. That's the value of individual and human rights. Their purpose is to defend the weak."
"The reason that our society remains regressive has to do with the decisions of politicians, the church and the judges—not Greek citizens." –Evangelia Vlami
Evangelia Vlami, one of the women who got married, disagrees with him about public opinion. "Greek society is extremely open-minded," she said. "When people heard about our wedding, they congratulated me and offered their support. I remember one woman—she had her child in her arms—stopped me on the way to the town hall. I thought she was going to swear at me or something, but she told me that she thought it was both right and brave that I defended what I believed in."
Vlami believes that the decision was political and not judicial: "We knew that we would have to take the case to the European court before any of this happened. I don't think anyone will stand for such a political decision though," she said. "The reason that our society remains regressive has to do with the decisions of politicians, the church and the judges—not Greek citizens."
When I asked whether she finds it funny that her case was "legislated" by a man who lived in 250 AD, Vlami replied, "I don't find it funny because I am here—living in the present. I feel like I am called upon to prove that the Earth isn't flat, even though some physicist wrote it was centuries ago."
As it stands, both cases have been brought to the Greek Supreme Court. The men's case is set for trial on May 11, while the women's case should be tried in November. Both Hirdaris and Vlami expect to be forced to appeal to the European Court in Strasbourg after that.