The Road Less Traveled

The recent Iowa Supreme Court decision on same-sex marriage raised an important legal question about the notion of protecting tradition for it’s own sake. How much significance ought the maintenance of cultural traditions be granted when weighing questions of constitutional law? Under what circumstances should a particular cultural tradition be prioritized over legal norms such as equal protection?

In the Varnum v. Brien case, the County argued that the state ban on same-sex marriage (in the form of the 1998 Defense of Marriage Act) promotes the “integrity of traditional marriage” by “maintaining the historical and traditional marriage norm ([as] one between a man and a woman).”

The Iowa Supreme Court rejected this argument, concluding that the County offered “no particular governmental reason underlying the tradition of limiting civil marriage to heterosexual couples,” and as a result, the argument could not stand. Without that underlying reason, it’s a circular argument:

“Thus, the use of traditional marriage as both the governmental objective and the classification of the statute transforms the equal protection analysis into the question of whether restricting marriage to opposite-sex couples accomplishes the governmental objective of maintaining opposite-sex marriage.”

Other arguments behind “protection of traditional marriage,” as I discussed in a recent post, included the “promotion of an optimal environment to raise children,” “promotion of procreation,” “promoting stability in opposite-sex relationships,” and “conservation of resources.” The court, in meticulous fashion, debunked each of these myths, and ultimately concluded, “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.” In effect, the ruling legalized same-sex marriage in Iowa.

There appears to be little room for debate on the latter arguments concerning procreation, child-rearing, tangible effects on opposite-sex relationships, and conservation of resources – the research is very clear in each of these regards, and there were few, if any, questions left lingering by the Iowa Supreme Court. However, I believe this argument for “protecting tradition,” however faulty in its logic, may be the primary source of controversy in the weeks and months ahead.

On a related note, the Iowa Supreme Court addressed concerns about protecting religious traditions, but perhaps in a way that is easily misunderstood. The Court asserted, “[C]ivil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.” This position actually does more to protect religious traditions than hurt them by maintaining a separation of church and state.

*

PROTECTING TRADITION FOR IT’S OWN SAKE

The argument for protecting tradition for it’s own sake suggests that the courts ought to uphold an unjust law because overturning it would produce such outrage, disorder, and similarly adverse circumstances in society. In Varnum v. Brien, for instance, the argument would be that, however unjust, a ban on same-sex marriage must stand if the people are unlikely to accept a change in the law. The unjust law would stand, then, presumably until the people, through their legislators, passed a new law allowing same-sex marriage. (This is where a lot of the rhetoric on “judicial activism” and judges “creating new laws” seems to come from.)

The obvious problem with this approach is that “protecting tradition” in the American legal system has always oppressed certain groups to the benefit of others – in fact, that appears to be the only basis behind protecting tradition for its own sake. There was no legal justification, besides “protecting tradition,” to segregate schools, restrict women from participating freely in business and politics, or make people pay or take a test to be allowed to vote. And barring some mystical human rights utopia in the near future, this tradition-oppression phenomenon will likely continue.

Furthermore, talking about “tradition” as an abstract concept is useless here. In context, we see that the “traditions” to which we refer are fundamentally unjust (e.g. sexist, racist, classist). In Varnum v. Brien, for instance, we saw the Iowa Supreme Court challenge a tradition that privileged heterosexual people over homosexual people for no legitimate reason. “Protecting tradition for its own sake,” then, is nothing more than a euphemism for preserving an unjust power structure. If it were anything more, we would be able to identify that “underlying reason” that eluded the County in Varnum v. Brien.

Perhaps I’m being too much of an idealist, failing to consider the consequences of such top-down decision-making, as exemplified in Varnum v. Brien. The fact that Republican leaders, who have historically (in Iowa and around the nation) centralized power in the hands of commanders of state and capital, to the disadvantage of the other 95% of the population, are expressing populist sentiments on the same-sex marriage issue is laughable. That hypocrisy aside, though, Republicans do have a point – folks get upset when judges rule against the status quo. I can’t help but wonder, though, if that isn’t the nature of being a judge in a constitutional republic – standing up to the “tyranny of the majority.” That tradition, one of justice, seems like the one we really ought to be hanging onto.

*

CRITICISM C/O “CONCURRING OPINIONS”

Nate Oman, an assistant professor of law at the College of William & Mary, recently posted a criticism of the Iowa Supreme Court’s apparent dismissal of protecting tradition for its own sake. He argues that a decision like Varnum v. Brien is less legitimate because it lacks “widespread consent” and may “threaten legal stability by cutting the law off from a deep source of intrinsic legitimacy.” Drawing from Edmund Burke, Oman argues that the fact that “one could not articulate a simple and rational justification for an ancient practice” is no reason to abandon it.

Oman’s first point on the importance of law being rooted in tradition for the sake of “widespread consent” and “intrinsic legitimacy” is relevant. But it does not offer up any justification for upholding an unjust law, except to avoid conflict between law and culture. What is missing from this criticism is the recognition that “justice delayed is justice denied.” The conflict (“between justice and culture,” you might say) is already playing out in the lives of gays and lesbians – continuing to ignore that conflict is no more just, or even practical, than avoiding the conflict over a new law. Even outside the realm of life-and-death justice issues, an argument for tradition, without some underlying reason, has no place in the courtroom. Politicians, on the other hand, can yammer on about it all day and pander to “traditionalists” all they please – that is, to some degree, in their job description.

Furthermore, on Burke’s point (via Oman), I would agree – we, in our finite and culturally mediated wisdom, have no business dismissing ancient practices because we do not understand them. We can disagree about particular cultural practices while still respecting others’ right to practice them; in fact, we have a long history of this sort of pluralism in the United States. Where I would draw the line is the point at which a cultural practice becomes unjust (female genital mutilation is a good example). In such a case, we have a moral responsibility to understand the merits of such a practice enough to justify the injustice inherent to it – and if we can’t, then it’s got to go.

Privileging opposite-sex marriage over same-sex marriage, no matter how well-established, is a tradition that deserves to be on the way out, the sooner the better. I would rather have seen the ban on same-sex marriage overturned as the result of Iowans recognizing the beauty of same-sex partnerships and rallying together in support of marriage equality, instead of the Supreme Court figuring it out for us. But I see no reason to withhold justice from gays and lesbians any further.