In the courts, states have had a hard time explaining what possible justification there can be for denying same-sex couples the right to marry. The two most common arguments given in the past are that the state would like to restrict marriage to couples who can procreate and the state would like provide the best environment for raising children. More and more courts though have pointed out the severe problems with these arguments. The first must deal with the fact that the state allows--and at times makes it easier--for non-procreative couples to wed. While it is true that under the rational basis test a statute may be over-inclusive or under-inclusive in achieving its goals it seems laughable to suggest that the state does not really want non-procreative couples to marry and does so only through oversight or lack of convenient way to prevent it. The second argument fares even worse. It tends to backfire as courts agree that marriage can be vitally important to the children involved and thus the state has no business denying the children of same-sex couples this invaluable protection. It is not surprising then that many states have recently stopped making these arguments (although Washington is one notable exception to this trend). Instead states like New Jersey, New York, and California have switched primarily to a claim that the state has an interest in preserving the traditional notion of marriage. It is for the sake of tradition that same-sex couples must be excluded from marriage.
I am actually somewhat sympathetic to the tradition argument. First of all, unlike the other arguments present above I believe this one is sincere. I think many people do oppose same-sex marriage because it disrupts their traditional concept of marriage. This can explain why support for civil unions for same-sex couples has generally been stronger than that for marriage. Civil unions provide a way to offer some of the protections of marriage without breaking from tradition. It also explains why many groups opposed to same-sex marriage talk about supporting, protecting, or defending traditional marriage but we don't see proposals for license plates asking to support procreative marriage.
I also find myself agreeing that tradition is important. It provides stability and continuity with the past. Tradition can be quite comforting and reassuring as we constantly face changes throughout life. It can be particularly distressing to see changes to traditions concerning family and religion as they are areas we associate with continuity and comfort. Because I find tradition so important I would concede that it could be a rational basis for legislation. There is something to be said for continuing to do something the way it has been done provided there is no good reason to change. But of course that is not the situation we face with same-sex marriage. The law as it stands violates our right to equal protection and harms families. When tradition is accused of being discriminatory it is hardly a defense to say that the discrimination is traditional.
This is particularly the case when we deal with traditions concerning the role of gender in our society. Traditions have long dictated distinct roles for women and men. In our present day those traditions have come into conflict with our ideals of equality and liberty. There is a belief that we should all have equal opportunities without regard to our gender; and we should have the liberty to pursue our dreams without the government using our gender to dictate our decisions for us. These new beliefs have caused many of our traditional laws to change. Some of those changes were initiated through the legislative process, some through executive orders, and many have come through court orders. The area of family law has been especially ripe for change in this regard. The role of each gender was perhaps no where more differentiated than in the home. At one point a woman lost all separate legal identity at the time of marriage. Only the husband could own property. These laws were challenged, often in the courts. If tradition had been an acceptable defense, the laws of marriage would not have changed. If tradition had been an acceptable defense, VMI would still exclude women. Fortunately our new ideals won out over or older traditions.
I find it remarkable to read in the same legal brief that the laws forbidding same-sex marriage have nothing to do with gender discrimination and a few pages later that they are necessary to preserve our traditions regarding marriage. Do they not realize that the tradition to which they appeal is one based upon the same gender discrimination they deny exists? Yes marriage has generally always been between a man and a woman, but when in that time has it not also always defined distinct gender roles?
It is difficult to resolve the tension between tradition and change. Too rigid an adherence to tradition prevents us from progress in achieving our ideals. A rush to change in blindness to tradition can leave us feeling adrift and lost. The key must be not to abandon our traditions wholesale, but rather to gradually modify them when and where necessary so that our traditions evolve. That is what has happened with marriage as we have seen it gradually lose its gender based distinctions emphasizing instead aspects of mutual responsibility and commitment. To keep the gendered entrance requirements of marriage based upon an allegiance to these past traditional distinctions would be a repudiation of the changes we have made toward gender equality. No court should be making that repudiation.