Gay Marriage and the Limits of Tradition
We treasure the customs and practices passed down from our ancestors. And we change them anytime we want.
In all the bad days that opponents of same-sex marriage have had lately, few compare with the one they had this past week in a courtroom in Chicago. Lawyers defending the bans in Wisconsin and Indiana were buried in an avalanche of skepticism and incredulity.
The judges demanded to know what worthy goals the prohibitions serve, and the attorneys had terrible trouble coming up with any. Perhaps the low point for their side came when one was asked why Wisconsin makes it so hard for same-sex couples to adopt and ventured to say, "I think tradition is one of the reasons."
At that, Judge Richard Posner did not slap his forehead and exclaim, "Of course! Why didn't we see that? Everything makes sense now!" Instead, he retorted: "How can tradition be a reason for anything?"
Many states, he noted, had a hallowed tradition of forbidding interracial marriage until 1967, when the Supreme Court said they couldn't. Posner couldn't see how entrenched practice, no matter how ancient, mattered in that case or this one. The argument, he said, amounted to: "We've been doing this stupid thing for a hundred years, a thousand years. We'll keep doing it because it's tradition."
His rebuff betrays a fatal problem for opponents of same-sex marriage. One of their central arguments is that we should limit marriage to male-female couples because that's been the norm in Western cultures for millennia. It's an argument deeply rooted in conservative political philosophy. But conservative political philosophy has never really had much influence in the United States, even among those who call themselves conservative.
In his 1953 book "The Conservative Mind," Russell Kirk expounded a view peculiar to the right. "Even the most intelligent of men cannot hope to understand all the secrets of traditional morals and social arrangements," he wrote, "but we may be sure that Providence, acting through the medium of human trial and error, has developed every hoary habit for some important purpose." It's not an argument often heard in our debates.
Americans do pay homage to our past by invoking the Declaration of Independence, the framers, the Constitution, Abraham Lincoln, and so on. But the idea that we should be afraid to make changes in our laws for fear of rending the organic fabric of society doesn't command much allegiance on either the left or the right.
Liberals have never made a fetish of obeisance to the past. They agree with the revolutionary pamphleteer Thomas Paine that giving primacy to tradition unjustly places "the authority of the dead over the rights and freedom of the living."
American conservatives largely share that premise. The New Deal has been in place for some 80 years, but conservatives don't believe in conserving that. Their feeling is it was a bad idea then, and it's a bad idea now.
None of this means Americans have no use for traditions. We have all sorts of favorites, from fireworks on the Fourth of July to football in autumn. But we feel entitled to alter and embellish them at our whim. The fireworks we see are bigger and better than the ones Americans saw a century ago. Football now starts in August and goes till February.
Marriage morphed repeatedly long before gays got it. Women acquired more rights, divorce became available to anyone who wanted it, and alimony grew less common. People of different races can now marry each other even in places where it was once cause for lynching.
Longstanding arrangements that make sense endure without controversy, and that's just the point: They make sense. Tradition and a good reason will win an argument, just as tradition and $2 will get you a ride on the bus. Americans don't keep doing things unless they serve our purposes, even if they suited our grandparents to a T.
The 20th-century Chief Justice Oliver Wendell Holmes Jr. spoke for most of us: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
The prevailing ethos in this country is that we are the masters of tradition, not the servants. We treasure the customs and practices passed down from our ancestors. And we change them anytime we want.
