01 July 2012


'Tradition as Justification: The Case of Opposite-Sex Marriage' [PDF] by Kim Forde-Mazrui in 78(1) University of Chicago Law Review (2011) 281-343 argues that
A central point of contention in the national debate over same-sex marriage is the importance of preserving tradition. That debate also features prominently in constitutional litigation over bans on same-sex marriage. Opponents of such bans argue that tradition is an illegitimate justification for the bans, while defenders of traditional marriage contend that tradition is not only a legitimate justification, but is in fact sufficiently important to withstand heightened judicial scrutiny. 
This Article assesses tradition as a justification for laws challenged on equal protection grounds, with a focus on laws that limit marriage to opposite-sex couples. The Article makes two main points. First, it concludes that a state’s interest in preserving tradition — including the tradition of opposite-sex marriage — is probably legally sufficient to survive the most deferential standard of rational basis review under the Equal Protection Clause. 
Second, this Article argues that courts should nonetheless view tradition with skepticism when it is offered to justify laws challenged on equal protection grounds. Tradition exhibits certain features, or “indicia of suspectness,” that counsel skepticism. Those features include tradition’s speculative utility, rhetorical appeal, and manipulability. Additionally, tradition is especially suspicious when offered to justify laws that burden a group toward whom there has been a cultural shift from widespread societal disapproval in the past to substantial public tolerance today. In such circumstances, tradition may serve as a convenient justification for people who are actually motivated by now-repudiated attitudes toward the burdened group. For bans on same-sex marriage, this Article contends, courts should invalidate such laws unless, after careful scrutiny, courts are satisfied that the laws are motivated by legitimate, non-tradition-based interests.
Forde-Mazrui concludes that -
The debate over same-sex marriage divides the nation along political, cultural, and religious lines. Central to that debate is the question whether the traditional definition of marriage, requiring one man and one woman, should be protected because that definition is traditional. In litigation under the Equal Protection Clause,  the doctrinal question is whether the traditional status of opposite-sex marriage is a sufficiently legitimate justification for excluding same-sex couples from marriage. 
This Article concludes that tradition can serve as a legally sufficient basis on which to uphold discriminatory laws, including bans on same-sex marriage. More specifically, the benefits associated with tradition, such as time-tested wisdom, social-identity reinforcement, and avoiding unintended consequences, are legally permissible justifications for a law challenged under the Equal Protection Clause, provided that tradition is not relied on simply for its own sake and that the expected benefits that might result from preserving tradition are not premised on illegitimate purposes or beliefs. In the case of opposite-sex marriage, the Article concludes, a state’s reliance on the presumed benefits of traditional marriage articulates a legally sufficient justification able to withstand the most deferential standard of rational basis review.
This Article has also argued, however, that certain circumstances warrant skepticism toward the use of tradition when offered to justify a discriminatory law. A significant factor warranting suspicion is that a tradition serves beliefs that have become repudiated, such as antagonism toward a historically stigmatized group that has gained substantial social acceptance. In such circumstances, tradition may serve as a convenient justification for those who hold the attitudes that are no longer an acceptable justification for the discrimination in question. The risk is heightened when tradition is emphasized as the sole or primary justification for the law rather than the law’s consequential benefits or other legitimate moral foundation. That the concept of tradition is manipulable and has rhetorical appeal further contributes to its opportunistic usefulness to support a law that is in fact based on illegitimate or arbitrary motivations. As a result, tradition is as likely as not to reflect outmoded attitudes that are not expressed due to their current unacceptability. Courts should therefore be skeptical of a law justified by tradition, and should not uphold it absent a convinc-ing showing of alternative, legitimate purposes. 
In the case of laws against same-sex marriage, a number of circumstances make the risk significant that opponents of same-sex marriage offer tradition to justify such laws when their opposition is actually motivated by illegitimate attitudes. There has been a long history of societal disapproval of homosexuality, a disapproval still prevalent among some populations and in certain locales. At the same time, public expression of such disapproval has become increasingly unacceptable and, equally important, courts have concluded that animosity toward gay and lesbian people is not a constitutionally legitimate basis for state-sponsored discrimination. The tradition of limiting marriage to opposite-sex couples serves the interests of people holding anti-gay beliefs and - because of the tradition’s longevity - is likely rooted in such beliefs. Moreover, claims about the purported psychological pathology of homosexuality have been repudiated and contemporary claims about the harmfulness to children of same-sex parents remain unproven and improbable. Given that opposition to same-sex marriage cannot be justified by demonstrable harm and reliance on moral disapproval risks constitutional invalidation, it is not surprising that resort to tradition as the justification of choice would emerge at this time and in this context. Accordingly, to guard against the risk that tradition is serving as a veil for illegitimate attitudes, courts should require states to substantiate that the consequences of same-sex marriage are demonstrably harmful or that bans on same-sex marriage are otherwise based on constitutionally acceptable moral grounds. 
The extent to which tradition should be viewed suspiciously when offered to justify other discriminatory laws is difficult to assess in the abstract. For the reasons discussed in this Article, any emphasis on tradition over other justifications should invite some inquiry into whether ulterior motives are at work. Many of the circumstances that make tradition a suspicious justification, however, are contingent on the particulars of the law being justified, including past and present societal attitudes toward the burdened group, the nature of the burden imposed, the availability of less burdensome alternatives, and the persuasiveness and constitutional acceptability of other justifications. The degree of suspicion and corresponding scrutiny warranted will thus depend on the specific law being challenged. Moreover, as this Article has acknowledged, that a practice or law is a tradition may give reason to believe that it serves some useful purpose, depending on the circumstances in which the tradition has been sustained. It is thus prudent to assess carefully the virtues of any tradition before changing it. 
At the same time, traditions do not exist in a vacuum. They exist in a world in which some attitudes once well accepted come to be understood by society as unfair or unfounded and by the courts as constitutionally invalid. Throughout American history, different groups once disdained or misunderstood have been welcomed into the political and constitutional fold. If social change brings acceptance to other groups in the future, we can expect that those resistant to such change will seek refuge in tradition when other justifications become unacceptable or unpersuasive. 
Taking a broader perspective, the debate over same-sex marriage and the value of tradition reflects a larger debate in American culture and politics. In very general terms, traditionalists, associated with political conservatism, tend to see America’s values as rooted in the past, in its founding origins and longstanding traditions, whereas reformists, associated with liberal progressivism, tend to see America’s virtue in what has changed and in what can be attained in the future. Traditionalists favor the status quo, putting the burden on groups discontented with extant laws to substantiate that reforms in their interest would not be unduly disruptive. 
Reformists, in contrast, view disadvantages imposed on a traditionally disfavored group as presumptively objectionable, placing the burden on those who defend the status quo to demonstrate that change would do more harm than good. These perspectives are not, of course, binary, but rather reflect a continuum upon which different people and communities fall. Where people situate themselves with respect to a given controversy tends to reflect the extent to which they find inspiration in the past or hope in the future. 
Managing this tension is a continuous challenge of American politics, a process in which courts can play only a limited role. That role can be important, however, and the interpretive approach proposed in this Article can contribute to it. If optimal policymaking about poten- tial legal reform, including the pace of implementation, is aided by informed deliberation and reasoned argument, then processes that help to reveal the actual concerns that motivate people on competing sides of a controversy can serve a useful function. Equal protection analysis, which aims to reveal the motivations behind legislative and state constitutional enactments, can help to facilitate a candid and realistic assessment of laws that impose burdens on historically disfavored groups. By “smoking out” the real reasons for laws that discriminate, including bans on same-sex marriage, courts can facilitate in litigation and encourage in the political process a fuller airing of competing perspectives on societal controversies. A more open, deliberative process can, in turn, inform questions such as whether to reform existing institutions, in what manner, and at what pace. Judicial scrutiny of tradition and other suspicious justifications can thus contribute constructively to the process of legal change.