Why 'tradition' shouldn't block gay marriage

Gay marriage Indiana

Scott Moubray-Carrico, from left, son Lucas Moubray-Carrico, 6, and Rodney Moubray-Carrico, of Albany, Ind. watch a press conference regarding same-sex marriage seen here at the Dirksen U.S. Courthouse in Chicago. (Jose M. Osorio / Chicago Tribune / August 25, 2014)

The most intriguing part of a three-judge smackdown administered to opponents of same-sex marriage Tuesday in a Chicago federal courtroom was when Judge Richard Posner mused on the value of tradition.

To set the stage: Attorneys representing Wisconsin and Indiana appeared before the 7th Circuit Court of Appeals to defend challenges to their states' prohibitions on gay marriage. And the panel gave them a rhetorical what-for, led by pitiless, sarcastic questioning by Judge Richard Posner, a conservative appointee of President Ronald Reagan.

"Why are all those obstacles strewn in the path of these people?" Posner asked Wisconsin Assistant Attorney General Timothy Samuelson less than three minutes into Samuelson's presentation. "Does (the Wisconsin legislature) have a reason?"

"I think there are several reasons," said Samuelson. "I think tradition is one of the reasons."

Posner pounced: "How can tradition be a reason for anything?" he demanded. "I don't get that. That's, again, the Loving case, right?"

His reference was to Loving v. Virginia, the 1967 U.S. Supreme Court decision that overturned the remaining state bans on interracial marriage

"The tradition of forbidding interracial marriage went back to colonial times," Posner said. "So why wasn't that a tradition?"

"It's distinguishable," said Samuelson, the hint of a hopeful question in his voice. "It's a different tradition."

"Of course it's a different tradition!" Posner said. "Tradition per se is not a ground for continuing. 'We've been doing this stupid thing for a hundred years, a thousand years. We'll keep doing it because it's tradition.' You wouldn't make that argument."

Samuelson agreed that, no, he wouldn't. But many do, not only in the effort to defend the rapidly toppling bans on gay marriage across the country, but also to preserve all manner of customs and laws that find themselves in the path of history's steamroller.

We tend to have a misty regard for tradition because of its association with rituals and all that is time-honored and time-tested. Traditional courtesies, recipes, songs and the like.

But tradition has a sketchy past. And the long-standing bans against interracial marriage — astonishing that the bans lasted in some states until 1967, isn't it? — are fairly minor examples. Segregation and slavery were once beloved traditions, as were the traditions of treating women as second-class citizens, heedlessly polluting our air and water, ignoring the concept of workplace safety, stuffing government jobs with cronies and hacks, hanging horse thieves and turning a blind eye to the sexual abuse of minors.

Around the world to this day, the flimsy yet resilient reed of tradition supports female genital mutilation, child marriage, honor killings, blasphemy laws, prohibitions on the education of girls and restrictions on basic human rights. It's an empty rebuke against progress that ranks up there with invocations of patriotism as the last refuge of scoundrels.

Not to equate opponents of gay marriage with defenders of every ghastly practice, but to say it was small wonder that Posner wearily and dismissively interrupted Samuelson later in the proceedings, "Ugh!" he sighed. "The tradition argument. It's feeble!"

He observed at another point that the case to maintain the prohibition against gay marriage is so devoid of actual evidence that it amounts to " 'We don't want to change it 'cause we don't know what'll happen,' Right?" he asked. "Change a tradition? Terrible! What if men stopped shaking hands. Right? It'd be the end of the nation. Right? Right?"

Wrong, obviously. Embarrassingly, shamefully wrong.

Twitter @ericzorn

Comments: chicagotribune.com/zorn

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