Tradition. The word just seems to jump out from the 6th Circuit Court of Appeals decision (Nos. 14-1341/ 3057/ 3464/ 5291/ 5297/ 5818) against marriage equality.
Again and again, Judge Jeffrey Sutton ignores the clear words of the 14th Amendment and invokes tradition to uphold the states of Michigan, Ohio, Kentucky and Tennessee bans on same-sex marriages and their refusing to recognize the marriage of same sex couples performed in states where it is legal.
Tradition does not equal justice.
Slavery was once traditional. It was an accepted aspect of human history from the very beginning of organized societies. The Judeo-Christian religious tradition that now condemn same sex relationships once endorsed and promoted slavery. Repeatedly in the Old and New Testaments it is written: “Slaves obey your masters.”
Stepping out of the biblical tradition and into United States history, the tradition of slavery was so contentious that it tore the country in half and over 750,000 people died in the resulting war.
Beyond slavery, inter-racial marriage was enforced by state legislation – Maryland passed a law forbidding these marriages in 1664 and, by 1776 seven of the thirteen colonies had such laws in place. There were at least four efforts to pass an amendment to the United States Constitution banning interracial marriage (1871, 1912, 1913 and 1928). When the Supreme Court decided Loving v Virginia in 1967, 17 states still enforced their anti-miscengencation laws.
SCOTUS wrote:
Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State.
The denial of basic rights subverts the principles of equality and turns tradition into oppression.
Letty Cottin Pogrebin wrote, “When men are oppressed, it’s a tragedy. When women are oppressed, it’s tradition.” Patriarchal traditions have been used in the denial to women many rights, including everything from basic property rights, protection from domestic violence and the right to vote. And this wasn’t just an issue for modern feminists!
In 1776, Abigail Adams wrote to her husband: “In the new code of laws, remember the ladies and do not put such unlimited power into the hands of the husbands.” [Letter, March 31, 1776 (in Alice S. Rossi, The Feminist Papers: From Adams to de Beauvoir, New York: Columbia University Press, 1973)]
John Adams replied, “I cannot but laugh. Depend upon it, we know better than to repeal our masculine systems.” [Letter, April 14, 1776 (ibid)]
His laughter echoed for 144 years until the 19th Amendment was passed. Still today, the Equal Rights Act (first proposed in 1923) has not been able to be ratified by the required thirty-eight states. How is that for the success of “less expedient, but usually reliable, work of the state democratic processes” that Judge Sutton would have LGBT folks wait for? (page 8 Nos. 14-1341/ 3057/ 3464/ 5291/ 5297/ 5818)
Tradition basically comes down to doing what you’ve always done and obscuring the real reasons you’re doing it. Many cultures (including ours), in their economies, policies, and systems of justice, use tradition as a tool of disenfranchisement. In my opinion, cultural traditions that oppress people, however, are not worth preserving. We can’t move forward while also trying to preserve the very systems that create injustice.
I just hope the Supreme Court, now that they have a clear circuit split, will act to put basic decency over tradition. As Judge Martha Craig Daughtrey wrote in her dissent of the 6th Circuit decision:
As recognized by the district court, there is no legitimate justification for delay when constitutional rights are at issue, and even adherence to religious views or tradition cannot serve to strip citizens of their right to the guarantee of equal protection under the law.
(page 52 Nos. 14-1341/ 3057/ 3464/ 5291/ 5297/ 5818)
