Tradition as Justification: The Case of Opposite-Sex Marriage

63 Pages Posted: 20 Jun 2010 Last revised: 27 Jul 2011

Kim Forde-Mazrui

University of Virginia School of Law

Abstract

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 them, while defenders of traditional marriage contend that tradition is not only a legitimate justification, it is 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 different-sex couples. The article makes two main points. First, it considers and concludes that a state’s interest in preserving tradition - including the tradition of different-sex marriage - is probably legally sufficient to survive the most deferential standard of rational basis review under the Equal Protection Clause.

Second, the article argues, courts should nonetheless view tradition with skepticism when 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, the article contends, courts should invalidate such laws unless, after careful scrutiny, courts are satisfied that legitimate, non-tradition-based interests actually motivated them.

Keywords: Sexual Orientation, Same-Sex Marriage, Different-Sex Marriage, DOMA, Civil Unions, Gay Marriage, Tradition, Burke

Suggested Citation

Forde-Mazrui, Kim, Tradition as Justification: The Case of Opposite-Sex Marriage. University of Chicago Law Review, Vol. 78, p. 281, 2011; Virginia Public Law and Legal Theory Research Paper No. 2010-40. Available at SSRN: https://ssrn.com/abstract=1627446

Kim Forde-Mazrui (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3299 (Phone)
434-924-7536 (Fax)

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