Slavery was a tradition.
So was a law that kept women from voting, and so were laws that forbade interracial marriages. The acceptance of the man’s so-called right to abuse his wife also was a tradition, and so were rules that barred blacks from voting, from going to non-segregated schools, from serving in integrated military units, from eating in many restaurants and from sleeping in many hotels.
Those all were traditions. Bad ones. They were allowed to exist as acceptable, as traditional, because the majorities upheld them by subjugating genders and races. In all of those cases, it took an ultimate court ruling or a law to ban those practices as illegal.
And in each case, it took principled protesters — abolitionists, suffragists, civil rights advocates — to rally a new majority that saw the evil in traditions that allowed inequality to exist, even to flourish and grow.
In each case, tradition rightfully gave way to judicial review, legislative correction and the persuasiveness of ideas whose time was right, right but at the same time long overdue.
That rejection of tradition, fortunately, is happening again on the issue of same-sex marriage.
In its ruling issued Thursday, a three-judge panel of the U.S. 7th Circuit Court of Appeals struck down arguments from Indiana and Wisconsin that said, in part, that because heterosexual marriage has been the tradition for decades in those states, the court should preserve that tradition and prevent persons of the same sex from marrying.
Judge Richard Posner was having none of that. From the get-go of oral arguments before the court on Aug. 26, he repeatedly — some might say even rudely and condescendingly — interrupted Indiana’s solicitor general, Thomas M. Fisher, and dismantled the state’s arguments. Just nine days later, in a unanimous, 40-page ruling, Posner wrote, “Tradition per se ... cannot be a lawful ground for discrimination — regardless of the age of the tradition.”
Further he wrote: “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 opinion says.
Clearly, Indiana’s law does discriminate against thousands of its citizens. Federal Judge Richard Young affirmed that on June 25 when he declared the law unconstitutional. An appeal of Young’s ruling led to the 7th Circuit’s action. A coming step is almost certain to be an appeal to the U.S. Supreme Court, which 32 states — Indiana among them — asked for the same day as the 7th Circuit’s hearing. But before a Supreme Court consideration can occur, another federal appeals court, the San Francisco-based 9th Circuit, is expected to hear arguments, on Monday, on same-sex marriage bans in Idaho, Nevada and Hawaii.
When the 9th Circuit hears its cases and when the U.S. Supreme Court hears the appeals from the states, Posner’s views deserve to prevail.
”Because homosexuality is not a voluntary condition,” he wrote, “and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.”
From those words a new tradition can grow.
A good tradition.
A national tradition.