Gay Marriage and the Limits of 'Tradition'-

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.

http://reason.com/archives/2014/09/01/gay-marriage-and-the-limits-of-tradition


Two of the key elements that hurts the opponents of same-sex marriage as it relates to "tradition" are the fact that

A. As noted in the article, until 1967, the outlawing of inter-racial marriage was also "traditional".

B. The fact they have raised such little concern over "traditional marriage" where it concerns some of their leaders like Rush Limbaugh, Newt Gingrcih, John McCain, even Ronald Reagan.

 

Traditions, rules, and laws all have one thing in common.

They were made to be broken.

And it's only breaking them if you get caught.

 

It was a typical response by those opposing gay marriage...after they had exhausted all their other arguments....to revert back to "tradition" (Some even started with that one).

The problem as noted in the column is, lots of things we now abhor or reject were "traditional" once......like racial segregation or racially oppressive laws. Or even the oppression of women. No doubt opponents of women's sufferage used "tradition" as an argument against it.

 

I don't oppose gay marriage.

I'd love to see the complete and utter annihilation of ALL marriage period.

Marriage is an abomination.

 

Sorry you feel that way.

Marriage can be a beautiful thing.

It is for my wife and I.

It is for my parents.

Sorry your experience is different.

 

So never married or are you divorced?

 

Never been.

Just seen a lot of abusive crap.

 

Ahhhhh....currently no girlfriend, I might guess?

 

That has nothing to do with anything.

I've seen a lot of abusive crap in many marriages I've seen.

 

So I'll take that for a "Yes"....never married, and you don't have a girlfriend. What IS the longest relationship you've had with a woman?

 

What part of that's irrelevant and I can see you leading up to a personal attack don't you get?

 

No, no personal attack. Revelation of the origin of your viewpoint.

I support marriage (for gays and straights). I've been married (to a woman) for 11 years...happily. The two things are likely congruent.

 

I get what you're saying.

"Marriage" is a 3-party contract of adhesion between spouse 1, spouse 2 and the state, love and religion are not required. And until we get rid of state sanctioned marriage, there's no legal/constitutional reason to deny same-sex couples a marital contract.

 

I've seen a lot of abusive relationships. For example, I knew this one guy who was literally forcing his wife to be a prostitute. In another one woman was constantly deriding the man she was married to and nothing he did would make her happy. And a few other abusive situations like those.

I've also seen a few others where the spouse, most of them the woman, but one of them was the man, completely subservient to the other person and waited on them hand and foot.

I do fully understand that a real marriage is not like this and that a real marriage means a partnership and companionship where the two are supposed to take care of each other when the time is needed to, and the importance of communication because of my experiences.


But with me, sometimes how i feel emotionally and what I can intellectually realize are two completely different things.

oh, congratulation on a long and happy marriage. May it continue for another fifty years.

 

Since you actually used a source I respect I thought that this post was worthy of a response.

First, enough with the interracial marriage comparison. It doesn't even fit in the context of this article. There were only legal bans on interracial marriage on a state by state basis that were repealed over the course of American history. It didn't start in 1967.



The states in gray never had laws on the books, the states in green repealed them by 1887, and the states in yellow repealed them from 1948 to 1967. Then it took Loving to get rid of the rest of them. But there was never some sort of long standing tradition against interracial marriage. There have been interracial marriages as far back as there were marriages. The same can't be said about gay marriages. That history goes all the way back to ...2001.

Now that article actually had a quote by Russell Kirk that explains the traditionalist approach, "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."

This is standard Burkean conservative thinking. I think Edmund Burke used the example of a liberal and conservative are walking in the fields, and they come across a fence in the middle of the field. The liberal wants to have the fence torn down since he can't see any reason for it. The conservative wants to wait, "Shouldn't we first find out why it was put up in the first place?"

The conservative thinks that we have traditions because they served some purpose, and the liberal thinks if he can't figure it the reason, then it's stupid and should be destroyed. So since you liberals are driving the train, I certainly hope you are right and you guys have so figured out human societies and human nature that you don't need tradition as guide, you can just depend on Salon.

 

What is does is...it degrades the standards of society.

On the news today someone came out against a recent loss for the homosexuals as one states ban was upheld. The homosexual proponent said that the ban against homo marriage goes against 'human dignity.' Another said the Boy Scouts homo ban ban goes against 'all that is good.'

Is two men sticking their privates up each others butt all that is good and human dignity at its best?

We can see the direction of how our world is degrading and what it will become as we legalize being drugged up 24/7 and promote homosexuality as normal as apple pie. Pretty soon no one will give a (*)(*)(*)(*) about anything as everything goes.

 

Maybe you're circle of friends and acquaintances has something to do with this?

I have been married (mostly happily!) for 43 years, and most couples I know (including my son) have been married upward of 18 years. NONE (even the few that have divorced) see marriage as "evil!"

 

You didn't discuss the part of the ban on inter-racial marriage that was 'traditional'. While bans on inter-racial marriage were not all inclusive- they did exist in the red and yellow states for over 100 years.

How many years does a marriage rule have to be in effect before it is part of tradition? The courts have- in my opinion- correctly pointed out that for much of the United States, bans on inter-racial marriage were 'traditional' and long standing rules. The appeal to tradition(which Virginia did make) failed because Virginia could not establish any valid reason for such a ban.

Again that is nothing more than an appeal to tradition- in reverse- you are saying since marriage between two persons of the same gender didn't exist before 2001 there is no reason for such marriages to be allowed.

I can't find that quote from Burke, but I do find that your post is typical of how many Conservatives(and Liberals) want to describe those that they disagree with on rather idiotic terms.

Since I have torn down fences before- as a Liberal I would see a fence in a field, and determine if there is some reason for that fence to be there, and whether the field would be improved by removing the fence, or whether the field is better with the fence in it.

I could answer that a Conservative would say "We can never remove the fence, it was put there for a purpose, and even if we don't know the purpose, we can never remove it"- but I don't really believe that- Conservatives would be more resistant to change- more reluctant to change- but both Liberals and Conservatives believe that they are approaching what they do from rational points of view.

The best thing would be for the Liberal and Conservative to discuss with each other why the fence should remain or should be torn down- and see what insights each brings to the argument. The worst thing would be for the Liberal to reflexively say tear it down, and the Conservative to say the fence can never be torn down- and for neither to care about whether best use of the field.

Sorry- that statement is just stupid. I think you are smarter than that and don't even believe it yourself.

 

Meanwhile politicians will ask - whose contributing more to my campaign for perpetual re-election - the one who wants the fence torn down, or the one wanting it to stay up?

 

Really? Have you looked at the divorce rates since the 1960's? All of that achieved without any gay marriages.

And on the news others say things like you do- that gays are bad.

Why do you care? Do you care whether your neighbor is sticking his private up his wifes butt? Do you want your neighbor caring whether you stick your private up your wifes.

And what is this obsession with butts?

Who is 'we'?

"We" have legalized being drugged 24/7 since the repeal of Prohibition. Likely many of the people you know are on drugs- anti-depressants, blood pressure medicine, diabetes medication even hair growth medicine.

If two consenting adults are in love with each other- I don't care whether they are a man and a woman or two men- just so long as they treat each other well, and treat others well.

 

I didn't discuss the part of the ban on inter-racial marriage that was traditional because I don't know what that is. That's Gorn's and apparently your argument. We know the history of the bans on interracial marriages. We know when the laws were passed against it, and if we really wanted to dig, we could find the minutes of the debates in the individual state legislatures. If it's tradition, then who's tradition is it? Those bans have been repealed by individual states for over a century, and the place where they persisted the longest, the south, didn't bring them with their scot-irish roots.

We all know the reason for the comparison: To mask gay marriage in the moral high ground of the black civil rights movement. But I find it irrelevant to the actual arguments about gay marriage.

That wasn't even close to my point. I was comparing the interracial marriage argument with the gay marriage one in opposition to the idea that the ban on interracial marriage is some long hallowed marriage tradition (for reasons previously explained).

I got that parable from an author doing a TV interview on his book comparing Burke and Paine. So that wasn't an exact quote from Burke, just what I remembered the author saying. But I think it is a pretty good example of the difference in conservative and liberal (in the broad senses of those words) thinking. And it shows particularly on this issue, since your counter example of "The best thing would be for the Liberal and Conservative to discuss with each other why the fence should remain or should be torn down- and see what insights each brings to the argument. The worst thing would be for the Liberal to reflexively say tear it down, and the Conservative to say the fence can never be torn down- and for neither to care about whether best use of the field. " wasn't even close to how the gay marriage argument went. Instead, liberals called the conservatives who opposed gay marriage homophobes who were probably in denial that they were gay themselves. The end. There was never any, "come, let us reason together." It went straight to name calling and stayed that way.So I think my version on what to do with the fence was more accurate than yours.

Particularly since you called my statement stupid!

 

The issue is States arguing that States have the authority to ban same gender marriage because marriage is traditionally between a man and a woman. The courts have pointed out that tradition is not a sufficient argument- noting that there was a tradition of marriage of not allowing a white man to marry a black woman- and that the State of Virginia's argument in favor of tradition was not a sufficient argument then.

Well we all know why Conservatives want to avoid the comparison. Because NOW- but not in 1960- a ban on inter-racial marriage is seen as something inexplicable and just a bigoted policy- but in the day- the ban on inter-racial marriage was considered just as much a moral issue as the ban on gay marriage is seen today.

And as I explained- that was a tradition for over 100 years.

LOL.....of course you do.

wasn't even close to how the gay marriage argument went. Instead, liberals called the conservatives who opposed gay marriage homophobes who were probably in denial that they were gay themselves.

The argument regarding gay marriage has been ongoing for over 20 years. While yes- there were- and are liberals who call anyone who opposed gay marriage homophobes- most simply argue that there is no reason to ban gay marriage.

You lump all liberals together- and make a claim that clearly doesn't apply to all liberals, nor all opponents to gay marriage bans.

I can point out Conservatives who never were willing to discuss rationally gay marriage or gay rights. I can point to Conservatives who call homosexuals evil, and pawns of the devil. I can point to Conservatives who claim that homosexuals are doing the work of Communists.

But I don't claim that all Conservatives think that homosexuals are the pawns of the devil just because some of your fellow travellers claim that.

It was a stupid statement- and as I said- I don't think you really believe it either.

 

Not for nothing but that's a specious argument. You're saying that tradition isn't a basis for law because there was once another law that was based on....tradition (which I've argued wasn't really a tradition) so therefore, tradition is an invalid argument for law.

Basically you've made the inverse of my argument, only you think that in all of human history the fact that there hasn't been gay marriage as a regular feature in any society until 2001 is comparable to a feature of the state law of some US states for a short period of time in a historical sense. If you are going to compare "traditions" common sense would dictate that you pick a comparison that predates human history to match it.

A "tradition" of a 100 years kind of makes my point.

Well I can only go with my experience on this board, and it seems that there was a lack of belief on the part of gay marriage supporters that opponents to gay marriage were anything but homophobes and closet cases. There may be exceptions, and to be fair, most arguments about the issue didn't start that way, but they mostly ended that way.

 

What I am saying is that appeal to tradition is not a valid argument- and the traditional ban on inter-racial marriage is an example of an invalid appeal to tradition.

From the Court's decision in Wisconsin:

Nevertheless, I agree with amici’s more general view that tradition can be important
because it often “reflects lessons of experience.” Amici’s Br., dkt. #109, at 7. For this
reason, courts should take great care when reviewing long-standing laws to consider what
those lessons of experience show. However, it is the reasons for the tradition and not the
tradition itself that may provide justification for a law. Griego, 316 P.3d at 871-72
(“[L]egislation must advance a state interest that is separate and apart from the classification
itself.” Kerrigan, 957 A.2d at 478-79 (“[W]hen tradition is offered to justify preserving a
statutory scheme that has been challenged on equal protection grounds, we must determine
whether the reasons underlying that tradition are sufficient to satisfy constitutional
requirements.&#8221. Otherwise, the state could justify a law simply by pointing to it.

......For this reason, the Supreme Court has
stated that the “[a]ncient lineage of a legal concept does not give it immunity from attack
for lacking a rational basis,” Heller v. Doe, 509 U.S. 312, 326 (1993), and it has “not
hesitated to strike down an invidious classification even though it had history and tradition
on its side.” Levy v. Louisiana, 391 U.S. 68, 71 (196. Thus, if blind adherence to the past
is the only justification for the law, it must fail. Holmes, The Path of the Law, 10 Harv. L.
Rev. 457, 469 (1897) (“It is revolting to have no better reason for a rule of law than that 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.&#8221.

I frankly don't even know what you are trying to say. I am not appealing to tradition- I am saying that tradition itself is not a valid reason. See the preceding quote from Wisconsin.

A tradition in the 1960's that would have been more than half of the age of our country.

I think your memory and viewing of the arguments are shaded by your bias. If I went by just the posts of the most extreme posters who accuse homosexuals of all kinds of terrible things, then I would be saying that Conservatives are all homophobes. And I don't do that.

 

Well look to this thread for an example.

I didn't call you a homophobe or a closeted gay simply because we were disagreeing.

Nor did I call this guy that:

What is does is...it degrades the standards of society.

On the news today someone came out against a recent loss for the homosexuals as one states ban was upheld. The homosexual proponent said that the ban against homo marriage goes against 'human dignity.' Another said the Boy Scouts homo ban ban goes against 'all that is good.'

Is two men sticking their privates up each others butt all that is good and human dignity at its best?

We can see the direction of how our world is degrading and what it will become as we legalize being drugged up 24/7 and promote homosexuality as normal as apple pie. Pretty soon no one will give a (*)(*)(*)(*) about anything as everything goes.
Last edited by slackercruster; Today at 07:39 AM.

Posts like that tend to provoke emotional responses.

If I were to judge all Conservatives based upon that one post in this thread- then I would be wrong.