One of the fascinating aspects of the development of (western) marriage as a socio-religious-legal structure is the extent to which it derived legitimacy from symbolic performative acts by the parties to the marriage. (Those parties might be only the two people getting married, or their families might be considered "parties to the marriage" with required actions. It depended.) If the correct set of things were said and done (with "the correct set" altering over time and by local culture) then one was married. The idea that an external authority had the right to determine whether or not a marriage existed was rather late in developing. If a man and a woman of appropriate age and with no pre-existing impediments made a present-tense statement of consent to marry, that could (in some places/times) be sufficient to create the fact of marriage.
The requirement that it be "a man and a woman" was, to a large extent, an implcit rather than explicit pre-requisite.
This symbolic/performative aspect of the creation of the married state is what Boswell is focusing on in the current section. Because if you have a union between two people of the same sex that uses the same core set of performative acts as is used for m/f marriage (though perhaps not always the full set of performative acts), what is it that makes the two resulting unions qualitatively different? (As opposed to different in secondary consequences, such as those involving descendents and inheritance.) If we're going to say that a ceremony of adelphopoiesis between two men--which uses the same language and symbolism as a marriage--is not a marriage, wherein lies the difference except in the self-referential definition by gender?
This is where a broader study in time and gender could benefit from looking at the self-developed ceremonies of union that women created together in more recent times--ceremonies that deliberately invoked the performative acts of marriage such as an exchange of rings and vows. One big difference is that those f/f ceremonies belong largely to an era where state (or church) approval of a union had become required for it to be a marriage. It isn't necessary to have an absolute legal prohibition on two people of the same sex marrying if one has a social understanding that the state or the church will refuse to record such a union as a marriage, as long as the act of recording the marriage has taken over as the "performative act." To continue my theme of tying this book in with the marriage equality movement in the USA, this state gate-keeping function became a key aspect. If there is no explicit prohibition on the state recording a marriage between two persons of the same sex--because it was expected that the implicit social prohibition needed no additional back-up--then how can it be invalid for a duly appointed official of the state to upend everything by simply choosing to "open the gate"? When Gavin Newsom, as mayer of San Francisco, directed government officials to record same-sex unions as marriages, opponents scrambled to identify some other means of putting a lock on the gate that they hadn't expected anyone to open.
In 18th century England, there are more than a few marriage registers that record either the marriage of two persons with female names, the marriage of two persons who were later determined to be both female (or where the recorded noted a belief that both were female), or the refusal to record a marriage for a couple where it was believed that both were female. (See Donoghue 1996 ch. 2) Setting aside the question (which would have been legally irrelevant at the time) of couples involving a woman and a trans man, under what legal context would a properly recorded marriage of this type be valid? Under what pretext would it be invalidated? When additional information is available on specific cases (such as the late 17th century marriage between Amy Poulter and Arabella Hunt) it is curious that the "obvious" argument that a marriage of two women could not possibly be valid was not necessarily used. (In the case of Poulter and Hunt, the marriage was declared invalid because Poulter was already married at the time and it was therefore bigamy, which certainly suggests that the women's marriage could have been valid otherwise. Though one suspects another ruse would have been found to invalidate it.)
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