In oral arguments last week of Wisconsin's appeal of the finding that the state's ban on same-sex marriage was unconstitutional, federal judges appeared dismissive of an argument based on tradition.
That critique was even more profound in the decision handed down Thursday from the 7th Circuit Court of Appeals that affirmed the ruling in Wolf v. Walker, again striking down Wisconsin's ban on gay marriage.
Judges Richard A. Posner, Ann Claire Williams and David F. Hamilton chewed up the state's argument that limiting marriage to heterosexual couples was tradition, and tradition was a valid basis for limiting legal rights.
Some excerpts from the ruling (the full text is available here):
"Wisconsin points out that many venerable customs appear to rest on nothing more than tradition — one might even say on mindless tradition. Why do men wear ties? Why do people shake hands (thus spreading germs) or give a peck on the cheek (ditto) when greeting a friend? Why does the President at Thanksgiving spare a brace of turkeys (two out of the more than 40 million turkeys killed for Thanksgiving dinners) from the butcher’s knife? But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause."
The judges cited the landmark 1967 Loving v. Virginia ruling that found laws banning interracial marriage unconstitutional. In that case, the tradition in states was to forbid interracial couples for marrying.
"Tradition per se has no positive or negative significance," the judges wrote. "There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s 'In the Penal Colony' and Shirley Jackson’s 'The Lottery,' bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition."
Wisconsin's argument that thousands of years of experience have shown opposite-sex marriage to be "optimal for the family, society and civilization" came under similar scrutiny.
The judges said no evidence to support that claim was given, nor did the state acknowledge traditions of polygamy in a number of countries.
"Arguments from tradition must be distinguished from arguments based on morals," the judges wrote. "Many unquestioned laws are founded on moral principles that cannot be reduced to cost-benefit analysis. Laws forbidding gratuitous cruelty to animals, and laws providing public assistance for poor and disabled persons, are examples. There is widespread moral opposition to homosexuality. The opponents are entitled to their opinion. But neither Indiana nor Wisconsin make a moral argument against permitting same-sex marriage."