Law and Tradition (herein of Iowa, Coke, Hale, and Selden)

Coke.jpgIn the Iowa Supreme Court’s opinion declaring traditional marriage unconstitutional, the justices dealt with the claim that the law was justified because it protected the integrity of the tradition of heterosexual marriage. The opinion states:

A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification.

As presented by the Court (and for all I know as presented by the attorneys defending the law), the argument sounds circular and absurd. As a technical matter the court was applying intermediate scrutiny, but as presented by the Court the appeal to tradition would seem to fail even a rational basis test.

To anyone with a familiarity with the history of the common law, the notion that the appeal to tradition is circular or vacuous is striking. The classical common law theorists of the seventeenth century – Coke, Hale, and Selden – thought that tradition was the primary justification for the law’s authority. Independent of the particular issue of same-sex marriage, the Iowa Supreme Court’s opinion shows how far our legal thinking has traveled.

It is, of course, always easy to dismiss the strange thoughts of the past as so much benighted nonsense, and to look at the seventeenth century appeal to tradition as a bit of rhetorical clap trap and nothing more. Certainly, there was more than a little bit of fiction in the appeal to immemorial custom. The appeal to tradition, however, was not without its reasons.

There are, it seems to me, at least three reasons for adhering to tradition because it is tradition.

One argument would be that the long continuation of a tradition indicates that the tradition commands widespread support. On one hand, law that follows tradition is thus more legitimate because it enjoys widespread consent, a consent evidenced not by the formal procedures of democratic institution but through the organic growth of social custom. On the other hand, as a practical matter setting the law in violent opposition to tradition threatens legal stability by cutting the law off from a deep source of intrinsic legitimacy.

The second argument is closely related to the first, and notes that traditional practices create expectations. The law ought not to upset those expectations. Doing so undermines one of the primary purposes of the rule of law, namely the creation of a stable set of expectations in which people can work out their lives free from the fear of violent shifts in how the state makes its power felt.

The third argument is that advanced by Burke. It rests on a skepticism about reason’s ability to create effective social practices from a priori principles. Burke, of course, was trained as a common lawyer in a day when the curriculum consisted mainly of painfully digesting Coke On Littleton. For him the fact that one could not articulate a simple and rational justification for an ancient practice was no reason for abandoning it. The process of organic social growth, experimentation, and survival had an inarticulate wisdom of its own, and it was a shallow hubris to suppose that we could dispose of it with a few syllogisms. The argument, of course, is difficult and dangerous, because sometimes tradition represents precisely the kind of viciousness condemned by the philosophes he so scorned. Or, as the Iowa Supreme Court put it:

[The appeal to tradition] can allow discrimination to become acceptable as tradition and helps to explain how discrimination can exist for such a long time. If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed.

And yet Burke’s argument is not without merit. It certainly counsels against the glib dismissal of tradition. After all, Burke’s prediction that the French Revolution – with its contempt of tradition — would produce a cartload of headless corpses and a tyrant has proved one of the more prescient moments in political philosophy.

At the end of the day, I think that the appeal tradition deserves a bit more respect than the Iowa Court gave it. It is not a bit of logically circular claptrap. Rather, the appeal to tradition is one of the well-springs from which the common law came and the memory of man runneth not to the contrary.

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17 Responses

  1. Kristen says:

    The court did not declare “traditional marriage” unconstitutional. It declared that allowing only opposite-sex marriage was unconstitutional. It should hardly a fine distinction among lawyers.

    Your first and second arguments are weak as applied to constitutional liberties; your third is based on a false premise. The court today did not reason merely that there was no simple and rational justification for the gay marriage ban and therefore it should be overturned. It reasoned that the reasons proffered were not rational and were not supported by evidence, whereas the plaintiffs’ arguments were rational and supported by evidence. Seems like a good reason to dismiss tradition to me.

  2. Sonja Starr says:

    I don’t read the court as suggesting that it is always vacuous to refer to tradition in the course of legal argument. That would indeed be a hard claim to defend in a common law system. The point here is specific to the context of equal protection analysis, and particularly to the use of intermediate scrutiny: absent more, appeals to tradition for its own sake cannot amount to a sufficiently important government interest to justify otherwise invidious discrimination. If not, any law that had been around for a while would survive automatically, since the “substantial relationship” part of the test would always be met (if the tradition to which you are appealing is the classification itself, then keeping the classification will obviously preserve the tradition effectively–that’s the circularity to which the court objects). I think the court is right to conclude that this is, basically, too easy and too universally available a justification for discrimination.

  3. Paul Gowder says:

    I don’t think Coke was as much of a traditionalist as you suggest. (Not going to address the arguments mainly because it all feels like such well-worn territory now.)

  4. Nate Oman says:

    Paul: I fully agree that Coke and his buddies played fast and loose with what constitutes history and tradition, something I tried to note in the post.

    As for the constitutional analysis, I don’t think that tradition simpliciter could survive some sort of heightened constitutional scrutiny, but I do think that there are perfectly good reasons why tradition simpliciter might provide a reason for legal rules.

  5. Nate says:

    Kristen: It seems to me that marriage has traditionally been defined not only in terms of what it includes but also by what it excludes, e.g. bigamy. Hence, to declare one of the exclusions that has traditionally defined the institution unconstitution seems to me tantamount to declaring that the traditional institution is unconstitutional. The new institution is very similar to the old one, but not exactly the same. Isn’t the whole point of this litigation that the traditional structure of marriage law is mistaken and ought to be modifed? Obviously, I don’t think that the Iowa Supreme Court has declared the marriages of particular heteroxexual couples unconstitutional.

    Regardless, my post is ultimately not about same sex marriage, but the more general issue of how tradition might justify a legal rule.

  6. Perhaps the case can be framed as a clash of two traditions. There’s traditional marriage and then there’s the tradition of protecting equality. The latter tradition has grown and developed to include a wider range of groups throughout history — but it is still a tradition. So perhaps the case is about one tradition being held to be more important than another tradition.

    More generally, regarding tradition, while I agree that tradition shouldn’t be overturned at a mere whim, I would submit it is a wise and prudent practice to critically scrutinize traditions. Shirley Jackson’s great story “The Lottery,” where a small town holds a yearly lottery to select a victim for public stoning, captures the dangers of unquestioned traditions.

    We should give tradition some weight because at some point in history, there were reasons for it, and there are always risks in departing from tradition. But traditions can grow stale, the reasons for them can cease to exist with changing circumstances, and modern understandings and values can undermine the foundations of certain traditions. With the case of gay marriage, if we recognize gays as sharing in the tradition of equality — of being equal to heterosexuals — then the tradition of equality would demand that we treat them as equal. This brings traditions into conflict, and we must then resolve which tradition (equality or marriage) should win out. I believe that equality should win — I view this tradition as one of the most fundamental traditions of our country. The fact that it is an evolving tradition and the fact that our country has often failed to live up to this tradition with various minority groups does not lessen its deep-rootedness as a tradition or its value.

    This is why I see gay marriage as an argument that can be made from tradition, not just an argument against tradition.

  7. Nate says:

    Dan: That’s not a bad way of putting it, although I think that the most powerful arguments for gay marriage are not ultimately based on equality. At the end of the day the argument from equality reduces to the claim that the exclusion of homosexuals from the institution of marriage marks them as second class citizens, and they ought not to be so marked. It’s a good argument and makes sense as far as it goes. The problem is that it fails to explain why marriages is affirmatively valuable. Of course, in practice the actual arguments get confused, and it is worth noting that one can’t really advocate gay marriage purely on the basis of equality, which is why claims about equality are always joined with claims about the love and commitment of gay couples. Appeals to love and commitment, however, strike me as being about something other than claims to equality. This why I find the most compelling arguments for gay marriage those put forward by folks like Jonathan Rauch, who acknowledges that neither the rhetoric of equality nor the rhetoric of liberty really captures what is at stake in marriage. In a sense, his argument is itself an appeal to tradition rather than abstract right or even equality-as-tradition. His argument ultimately sees gay marriage as a kind of casuistic extension of an existing practice rather than the implication of some abstract right. Or at least that is my rather pro-tradition reading of Rauch.

  8. Nate — I’m not convinced that “one can’t really advocate gay marriage purely on the basis of equality.” One could readily define the value of marriage purely in legal terms — in the specific legal rights that it provides to couples. In this regard, there is clearly unequal treatment. Our tradition of equality is one of equal treatment under the law. While it is true that marriage has other benefits beyond legal ones, from our tradition of equal treatment under the law, it is the legal rights and abilities that are key.

  9. Nate says:

    I suppose that the short response would be that even if one considers marriages purely as a bundle of legal rights, the equality argument doesn’t say why the proper response to the exclusion of homosexuals from marriage isn’t simply the abolition of the institution entirely.

  10. Why Abolish a Good Thing? says:

    If marriage is a civil contract, then the argument about historical discrimination is rather silly. No one argues that the history of nonexistence of LLCs means that corporations and partnerships are exclusionary. We can have a tradition of no LLCs without it really being all that much of a big deal, even if there is a significant minority of businesspersons who might prefer the LLC as a corporate legal form for tax reasons and matters of convenience.

  11. peter says:

    As to the question of whether “tradition simpliciter might provide a reason for legal rules,” Coke seems to have taken the view that the tradition in question first had to pass certain requirements, including that the tradition be reasonable. It’s hard to find evidence showing what this actually meant, but in any case, imposing that barrier suggests that “tradition simpliciter” wasn’t enough. It’s doubtful that Coke’s reasonableness requirement was the same as today’s rat. basis – we’re talking about a very different jurisprudential universe and the concepts probably do not translate directly.

  12. Alan says:

    The Iowa Supreme Court did not declare traditional marriage was unconstitutional, and the fact that you would state this shows you are unqualified to comment on this matter from a legal perspective.

  13. Nate says:

    Alan: Calm down. As I clarified above, I am well-aware of what the Iowa Supreme Court held and I explain why I chose the term that I did in my comment responding to Kristen. Also, if you bother to read the post you’ll notice that it isn’t really about same sex marriage as much as the role of tradition in legal argument.

  14. Nate says:

    “we’re talking about a very different jurisprudential universe and the concepts probably do not translate directly.”

    A fair point. One can still hope for the fusion of horizons I suppose…

  15. A.W. says:

    Well, you guys left out the best reason for preserving tradition: because it has worked this long.

    But more appalling than the rejection of tradition is the sudden decision that the people of iowa cannot determine what is and isn’t a healthy pairing. i made this point in the other iowa gay marriage thread, but if the belief that a relationship is screwed up is not sufficient justification, then how do you justify banning incestual gay marriage? Or for that matter, straight incestual marriage between step-siblings? If you check the incest statutes in most states, Greg Brady cannot marry Marsha even though they are only brother and sister by their parents’ marriage.

    Not that i am saying that next two brothers will be allowed to marry in iowa. i am sure it won’t come to that. But in doing so, it will rip the mask off this whole charade. This isn’t rule of law, but the rule of man, as in the men and women in black robes. And it is a threat to every liberty we hold dear. For instance, how free will we be to speak if the courts conjure a right not to be offended? Not to mention the fact that many of the same courts that make up new rights have ignored specifically written rights in our constitution.

    For instance, the Supreme Court has only recently vindicated the right to bear arms, and its an open question of whether that right will be recognized in the 14th Amendment.

    Likewise, if you think you have freedom of speech, try this. buy a TV station and then put the camera on you and say “shit” on the air. Hire Janet Jackson to flash herself. Or just let Pepsi company buy out an ad for its preferred presidential candidate. See what happens to you. it turns out that free speech means, to the court, that you can speak freely but then be fined for saying the wrong word, etc. Don’t think for a moment that the activism can’t be turned against you.

  16. Re: One can still hope for the fusion of horizons I suppose…

    Certainly more than one might reasonably entertain the hope that those commenting have actually read Gadamer’s Truth and Method….

  17. A.W. says:

    Yes, Patty, for the love of God, whatever you do, rather than make an argument, cite one. *rolls eyes*