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Gay rights advocates have recorded an impressive string of court victories since then in New Jersey, Massa-chusetts, California, Connecticut, and Iowa. These decisions break important new ground, but what is most striking about them is how weak the arguments against gay marriage are; so much so that it is difficult to see how courts could ever have ruled otherwise. Three arguments predominate: (1) the state is responsible for preserving the traditional conception of marriage; (2) limiting marriage to heterosexual couples furthers the state's interests in promoting procreation and/or healthy childrearing; and (3) the state has a legitimate interest in refusing to condone homosexual behavior that it deems immoral.
The first argument, based on preserving tradition, is circular: it seeks to justify the limitation of marriage to unions between a man and a woman on the ground that marriage always has been limited to unions between a man and a woman. As Judge Judith Kaye of the New York Court of Appeals has written, "The justification of 'tradition' does not explain the classi- fication; it merely repeats it." In its gay marriage decision, the Connecticut Supreme Court explained that courts must look behind tradition to "determine whether the reasons underlying the tradition are sufficient." Tradition itself is not a justification for discrimination. After all, women were traditionally excluded from jury service and many professions, and blacks were traditionally denied the vote and relegated to segregation.
The fact that the tradition of marriage has been shaped by religious doctrine does not strengthen the objection. In fact, religious views on this question, like on so many others, are deeply divided. Some religions hold that marriage must be limited to the union of a man and a woman. But other religions, such as Buddhism, Unitarianism, and Reform Judaism, hold just as deeply that individuals should be free to marry those of their own sex. Under our Constitution, the state has no legitimate interest in endorsing one religious view over the other.[5]
A variant of the tradition argument maintains that the state has a legitimate interest in preserving the institution of marriage. But how exactly would extending the right to marry to same-sex couples undermine marriage? It would certainly change the institution, in the sense of including couples that were traditionally excluded. But the institution of marriage has already changed dramatically over the years. As Andrew Sullivan has argued:
If marriage were the same today as it has been for 2,000 years, it would be possible to marry a twelve-year-old you had never met, to own a wife as property and dispose of her at will, or to imprison a person who married someone of a different race. And it would be impossible to get a divorce.[6]
The first argument, based on preserving tradition, is circular: it seeks to justify the limitation of marriage to unions between a man and a woman on the ground that marriage always has been limited to unions between a man and a woman. As Judge Judith Kaye of the New York Court of Appeals has written, "The justification of 'tradition' does not explain the classi- fication; it merely repeats it." In its gay marriage decision, the Connecticut Supreme Court explained that courts must look behind tradition to "determine whether the reasons underlying the tradition are sufficient." Tradition itself is not a justification for discrimination. After all, women were traditionally excluded from jury service and many professions, and blacks were traditionally denied the vote and relegated to segregation.
The fact that the tradition of marriage has been shaped by religious doctrine does not strengthen the objection. In fact, religious views on this question, like on so many others, are deeply divided. Some religions hold that marriage must be limited to the union of a man and a woman. But other religions, such as Buddhism, Unitarianism, and Reform Judaism, hold just as deeply that individuals should be free to marry those of their own sex. Under our Constitution, the state has no legitimate interest in endorsing one religious view over the other.[5]
A variant of the tradition argument maintains that the state has a legitimate interest in preserving the institution of marriage. But how exactly would extending the right to marry to same-sex couples undermine marriage? It would certainly change the institution, in the sense of including couples that were traditionally excluded. But the institution of marriage has already changed dramatically over the years. As Andrew Sullivan has argued:
If marriage were the same today as it has been for 2,000 years, it would be possible to marry a twelve-year-old you had never met, to own a wife as property and dispose of her at will, or to imprison a person who married someone of a different race. And it would be impossible to get a divorce.[6]
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