Tradition as justification: The case of opposite-sex Marriage

University of Chicago Law Review

Volumn 78, Issue 1, 2011, Pages 281-343

  Forde Mazrui, Kim ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 84858182136     PISSN: 00419494     EISSN: None     Source Type: Journal    
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References (312)

1. See Varnum v Brien, 763 NW2d 862, 873, 875, 897-99 (Iowa 2009) (noting and rejecting the government's argument that there is an important governmental interest in promoting the concept of marriage as traditionally understood): Final Amended Reply Brief of Defendant-Appellant, Varnum v Brien, No 07-1499, "16 (Iowa filed June 10, 2008) (available on Westlaw at 2008 WL 5156763) (defending the constitutionality of a ban on same-sex marriage on the ground that "[t]he concept of same sex marriage is just simply not part of the nation's history, legal traditions and practices'").
2. In re Marriage Cases, 183 P3d 384, 450-51 (Cal 2008)
3. *7-10 (accepting that same-sex marriage would not harm the state's interest in the proper upbringing of children but arguing that the benefits and rights of marriage were already conferred upon committed same-sex partners via the slate's domestic partnership law).
4. See. for example, Baker v Nelson, 191 NW2d 185, 186-87 (Minn 1971)
5. (emphasizing that marriage is predicated on the traditional notion of procreation through the union of a man and a woman), citing Skinner v Oklahoma, 316 US 535, 541 (1942)
6. ("Marriage and procreation are fundamental to the very existence and survival of the race."): De Santo v Barnsley, 476 A2d 952, 954-56 (Pa Super Ct 1984)
7. (finding that common law marriage has always been, and should continue to be, understood as the union of a man and a woman); Anonymous v Anonymous, 325 NYS2d 499, 500 (NY S Ct 1971) ("Marriage is and always has been a contract between a man and a woman.").
8. See Suzanne B. Goldberg, Marriage as Monopoly: History, Tradition, Inerementatism, and the Marriage/Civil Union Distinction. 41 Conn L Rev 1397, 1404-05 (2009)
9. (noting a number of cases in which the defenders of mini-DOM As appealed to "marriage's ancient history"): Anthony C. Infanti, Taxing Civil Rights Gains, 16 Mich J Gender & L 319, 342 (2010) (reflecting that the defense of mini-DOMAs "conjures an image of marriage as an ancient citadel that is under attack by (foreign) invaders"). The term "mini- DOMA" for state-level opposite-sex marriage protection laws alludes to the federal Defense of Marriage Act (DOMA). Examples of mini-DOM As include Ala Code Ann § 30-1-19: Ariz Rev Stat Ann § 25-103 (West): Mich Comp Laws Ann § 551.1 (West).
10. Leonard G. Brown III, Constitutionally Defending Marriage: The Defense of Marriage Act, Romer v. Evans and the Cultural Battle They Represent, 19 Camp L Rev 159, 171 (1996)
11. (staling that "DOMA provides a semblance of restraint on the Federal Judiciary by defining the meaning of marriage and displaying the intent of Congress to protect the traditional meaning of the word from those that wish to redefine it" and "[t]he legislative history of DOMA also clearly defines the defense of the traditional marriage as a substantial government interest"): Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women's Work through Premarital Security Agreements, 77 Tex L Rev 17, 32 n 55 (1998)
12. (quoting a number of members of Congress at committee hearings asserting the importance of tradition in terms of defining marriage): Note, Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage, 117 Harv L Rev 2684. 2696-98 (2004)
13. (identifying tradition as a motivating force for DOMA supporters): Sherri L. Toussaint, Comment. Defense of Marriage Act: Isn't It Ironic⋯ Don't You Think? A Little Too Ironic?. 76 Neb L Rev 924. 935-39. 942-47. 977-78 (1997)
14. (describing first how tradition had justified prejudice in the past and then how prejudice helped lead to the enactment of DOMA). See generally Alec Walen, The "Defense of Marriage Act" and Authoritarian Morality. 5 Wm & Mary Bill Rts J 619 (1997)
15. (describing six categories of argument asserted by DOMA supporters). See also Mark Tanney, Note. The Defense of Marriage Act: A "Bare Desire to Harm" an Unpopular Minority Cannot Constitute a Legitimate Government Interest. 19 T Jefferson L Rev 99. 119 (1997) (stating that defining marriage as "exclusively heterosexual because 'it has always been that way'" is factually incorrect).
16. See. for example, William C. Duncan, Constitutions and Marriage. 6 Whittier J Child & Fam Advoc 331. 338 (2007):
17. Steven W. Fitschen, Marriage Matters: A Case for a Get-the-Job-Done-Right Federal Marriage Amendment. 83 ND L Rev 1301. 1310-14 (2007):
18. Maggie Gallagher, Rites, Rights, and Social Institutions: Why and How Should the Law Support Marriage?. 18 Notre Dame J L Ethics & Pub Pol 225. 231-33 (2004).
19. See generally Symposium. Moral Realism and the Renaissance of Traditional Marriage. 17 Regent U L Rev 185 (2005):
20. Symposium. Same-Sex Marriage. 18 BYU J Pub L 273 (2004).
21. See note 8. See also Dale Carpenter, Bad Arguments against Gay Marriage. 7 Fla Coastal L Rev 181. 183-219 (2005)
22. (critiquing a number of arguments made against same-sex marriage): Eugene Volokh, Same-Sex Marriage and Slippery Slopes. 33 Hofstra L Rev 1155. 1167-97 (2005)
23. (addressing a number of slippery slope arguments advanced by opponents of same-sex marriage): Maggie Callagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman. 2 U St Thomas L J 33. 46-48 (2004)
24. (appealing to the need for marriages to result in procreation since "depopulation, not overpopulation, is the threat most to be feared in the contemporary context"): Ben Schuman, Note. Gods and Gays: Analyzing the Same-Sex Marriage Debate from a Religious Perspective. 96 Georgetown L J 2103. 2118-20 (2008)
25. (describing how opponents of same-sex marriage warn of a future of legalized polygamy, pedophilia, and bestiality if same-sex marriage is legalized): Elizabeth Larcano, Note, A "Pink" Herring: The Prospect of Polygamy Following the Legalization of Same-Sex Marriage. 38 Conn L Rev 1065. 1066-67 (2006)
26. (noting that same-sex marriage opponents have raised the specter of the legalization of polygamy as a rationale for banning same-sex marriage). See generally Editorial. Ballot Measure 2: A Yes-Vote-But a Complex Choice. Anchorage Daily News F2 (Oct 25. 1998) ("[S]ociely has a right to define marriage and defend the tradition of marriage.").
27. See Lynn D. Wardle, A Response to the "Conservative Case" for Same-Sex Marriage: Same-Sex Marriage and "The Tragedy of the Commons." 22 BYU J Pub L 441. 449 (2008) (stating that "[conservatives are not opposed to change qua change" and that the conservative approach relies instead on "gradual organic evolution instead of revolution").
28. See. for example, William C. Duncan, Marriage and the Utopian Temptation. 59 Rutgers L Rev 265. 275 (2007).
29. quoting Russell Kirk. Edmund Burke: A Genius Reconsidered 83 (Arlington House 1967)
30. ("The continuity of a nation's establishments and institutions. the true consensus of many generations. must not be imperiled by the rash innovations of a talented reformer: for though the individual is foolish, the species is wise."): Michael S. Wald, Same-Sex Couple Marriage: A Family Policy Perspective, 9 Va J Soc Pol & L 291. 330 (2001) (describing how opponents of same-sex marriage assert "the wisdom that [opposite-sex] marriage is a critical aspect of social organization").
31. Troy King, Marriage between a Man and a Woman: A Fight to Save the Traditional Family One Case at a Time. 16 Stan L & Pol Rev 57. 57 (2005)
32. ("The assaults [by same-sex marriage supporters] are being leveled against the morals, traditions, and beliefs that define who we are as a people and what matters to us."): Kenneth W. Starr, et al. Marriage Equality in California: Legal and Political Prospects. 40 Loyola LA L Rev 1209, 1227, 1234-35 (2007) (maintaining that preservation of culture as it currently exists is sufficient to satisfy a rational basis standard of review).
33. See Amy L. Wax, The Conservative's Dilemma: Traditional Institutions, Social Change, and Same-Sex Marriage. 42 San Diego L Rev 1059. 1066-67 (2005) (summarizing Burkean assumptions, including collective wisdom and unintended consequences).
34. See Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided. 110 Harv L Rev 4. 97-100 (1996)
35. (warning that. even if bans on same-sex marriage are unconstitutional, prudence counsels no action or incremental action by courts to allow society time to adjust through deliberative, democratic process and cautioning that premature judicial recognition could provoke anti-gay backlash). See also Cass R. Sunstein, Homosexuality and the Constitution, 70 Ind L J 1, 24-28 (1994) (noting that immediate change in social policies can have unintended consequences).
36. See Fredric J. Bold, Jr. Comment. Vows to Collide: The Burgeoning Conflict between Religious Institutions and Same-Sex Marriage Antidiscrimination Laws. 158 U Pa L Rev 179. 185 (2009)
37. (noting that many Americans see opposite-sex marriage as fundamental to the concept of family, which, in turn, is fundamental to the stability of society): Lynn D. Wardle, The Proposed Federal Marriage Amendment and the Risks to Federalism in Family Law. 2 U St Thomas L J 137.139-40(2004).
38. See. for example, Toni M. Massaro. Gay Rights, Thick and Thin. 49 Stan L Rev 45. 68 (1996) (Pubitemid 126406387)
39. (arguing that a state must justify prohibiting same sex marriage "with something more persuasive than intoning tautologically that marriage 'has always been that way'"): Wax. 42 San Diego L Rev at 1098 (cited in note 13). citing Paul Franco. Michael Oakeshott: An Introduction 96 (Yale 2004).
40. For scholarship critical of tradition, see Eric Alan Isaacson, Traditional Values or a New Tradition of Prejudice? The Boy Scouts of America vs. the Unitarian Universalist Association of Congregations. 17 Geo Mason U Civ Rts L J 1, 52 (2006)
41. (describing the increasing tension between the traditions of liberal religious sects and conservative religious sects in the United States): Adam B. Wolf, Fundamentally Flawed: Tradition and Fundamental Rights. 57 U Miami L Rev 101, 102-04 (2002)
42. (asserting a number of flaws inherent to relying on tradition when engaging in judicial decisionmaking, notably that tradition can promulgate and prolong prejudice and discrimination): Robert L. Hayman. Jr. The Color of Tradition: Critical Race Theory and Postmodern Constitutional Traditionalism. 30 Harv CR-CL L Rev 57, 71-73 (1995)
43. (noting that reliance on tradition in judicial decisionmaking can be problematic because traditions can change over time): Anita L. Allen, Autonomy's Magic Wand: Abortion and Constitutional Interpretation. 72 BU L Rev 683, 696 (1992)
44. (praising the Court for departing from tradition in Planned Parenthood v Casey. 505 US 833 (1992)):
45. Rabin West, The Ideal of Liberty: A Comment on Michael II. v. Gerald D.. 139 U Pa L Rev 1373. 1374-78 (1991)
46. (arguing that adhering to traditions reinforces injustice and undermines human liberation): David J. Luban, Legal Traditionalism, 43 Stan L Rev 1035, 1042, 1045-47 (1991)
47. (criticizing tradition as anachronistic and not always amenable to science and reason): John Charles Hayes, Note. The Tradition of Prejudice versus the Principle of Equality: Homosexuals and Heightened Equal Protection Scrutiny after Bowers v. Hardwick, 31 BC L Rev 375, 426-28 (1990):
48. Helen Garfield, Privacy, Abortion, and Judicial Review: Haunted by the Ghost of Lochner, 61 Wash L Rev 293, 332-37 (1986)
49. (criticizing prejudicial traditions): John G. Wofford, The Blinding Light: The Uses of History in Constitutional Interpretation. 31 U Chi L Rev 502, 528 (1964) (arguing on behalf of freedom "from the strictures of the past." although recognizing that knowledge of historical continuity is essential in judicial decisionmaking).
50. See Schuman, Note, 96 Georgetown L J at 2114 (cited in note 9): C. Brett Miller, Comment. Same-Sex Marriage: An Examination of the Issues of Due Process and Equal Protection. 59 Ark L Rev 471, 479-80 (2006):
51. Carlos A. Ball, The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. Texas. 88 Minn L Rev 1184, 1223-31 (2004):
52. William N. Eskridge, Jr, A History of Same-Sex Marriage, 79 Va L Rev 1419, 1493-1510 (1993).
53. See Liz Seaton, The Debate over the Denial of Marriage Rights and Benefits to Same-Sex Couples and Their Children. 4 Margins: Md L J Race, Religion, Gender & Class 127, 136-43 (2004):
54. Lewis A. Silverman, Suffer the Little Children: Justifying Same-Sex Marriage from the Perspective of a Child of the Union. 102 W Va L Rev 411, 436-49 (1999):
55. Barbara A. Robb, Note. The Constitutionality of the Defense of Marriage Act in the Wake of Romer v. Evans. 32 New Eng L Rev 263, 301-06 (1997)
56. (identifying myriad federal benefits that same-sex couples could obtain if federal law recognized same-sex marriages). See also Massachusetts v United States Department of Health and Human Services. 698 F Supp 2d 234, 242-44 (D Mass 2010) (demonstrating how marital status impacts eligibility for certain state and federal tax and healthcare benefits).
57. See. for example, Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-community Critique. 21 NYU Rev L & Soc Change 567, 597-99 (1995)
58. (arguing that the overall institution of marriage would be improved if it were extended to same-sex partners, particularly in regard to reducing sexism and social pressure to assume traditional gender roles), citing Sylvia A. Law, Homosexuality and the Social Meaning of Gender. 1988 Wis L Rev 187, 218.
59. As of August 2010. a total of forty-five states (90 percent) do not perforin same-sex marriages. See Sandhya Somashekhar, Federal Appeals Court Puts California Gay Marriages on Hold. Wash Post A03 (Aug 17. 2010).
60. As of August 4. 2010. thirty states (60 percent) have constitutional language banning same-sex marriage. See Factbox: U.S. Laws on Gay Marriage, Civil Unions. Reuters (Aug 4. 2010). online at http://www.reuters.com/article/ idUSTRE67364P20100804 (visited Nov 23. 2010).
61. One additional state. Hawaii, has a constitution that explicitly authorizes the state legislature to ban same-sex marriage. National Conference of State Legislatures. Same Sex Marriage, Civil Unions and Domestic Partnerships (Sept 2010)
62. ("NCSL Overview"), online at http://www.ncsl.org/default.aspx? tabid=16430 (visited Nov 23. 2010).
63. See. for example, Conaway v Deane. 932 A2d 571, 624-27 (Md 2007):
64. Andersen v King County. 138 P3d 963, 979 (Wash 2006):
65. Hernandez v Robles. 855 NE2d 1, 6-9 (NY 2006):
66. Lewis v Harris. 875 A2d 259. 271 (N.I 2005).
67. But see Perry v Schwarzenegger. 704 F Supp 2d 921, 995-1003 (ND Cal 2010):
68. Varnum, 763 NW2d at 906:
69. Goodridge v Department of Public Health. 798 NE2d 941, 969 (Mass 2003).
70. Baehr v Lewin, 852 P2d 44, 67-68 (Hawaii 1993).
71. Goodridge. 798 NE2d at 969.
72. In re Marriage Cases. 183 P3d at 419-20, 426-27, 432. 444-46.
73. Kerrigan v Commissioner of Public Health. 957 A2d 407, 481 (Conn 2008).
74. Varnum, 763 NW2d at 906.
75. See Strauss v Horton, 207 P3d 48, 119-21 (Cal 2009)
76. (upholding Proposition 8. a 2008 constitutional amendment to ban same-sex marriage, but also upholding same sex marriages performed in the state prior to the amendment's passage): Kristin D. Shotwell, Note, The Suite Marriage Cases: Implications for Hawai'i's Marriage Equality Debate in the Post-Lawrence and Romer Era. 31 U Hawaii L Rev 653, 655-57 (2009)
77. (detailing the development and passage of Hawaii's 1998 constitutional amendment banning same-sex marriages): Eric Bailey and Michael Rothfeld, Voters Are Divided on State Ballot Measures. LA Times B1 (Nov 6.2008). See also Cal Const Art I. § 7.5 ("Only marriage between a man and a woman is valid or recognized in California.").
78. See Abby Coodnough, Rejecting Veto, Vermont Backs Gay Marriage. NY Times A1 (Apr 8. 2009) (describing the legislation and its path to adoption by the legislature).
79. See Abby Coodnough, New Hampshire Legalizes Same-Sex Marriage. NY Times A19 (June 4. 2009).
80. See Abby Coodnough, Maine Governor Signs Same-Sex Marriage Bill. NY Times A21 (May 7. 2009).
81. See Keith L. Alexander and Ann E. Marimow, For Gays, a D.C. Day to Treasure. Wash Post A1 (Mar 4. 2010).
82. See Abby Coodnough, Gay Rights Rebuke May Result in a Change in Tactics. NY Times A25 (Nov 5. 2009).
83. Three states recognize same-sex marriages performed in other states (New York. Rhode Island, and. recently. Maryland) but do not perfonn same-sex marriages themselves. See Godfrey v Spano, 920 NE2d 328, 335-37 (NY 2009)
84. (affirming that county employees who are a party to a same-sex marriage performed in another state are entitled to spousal benefits): Katie Zezima, Rhode Island Steps toward Recognizing Same-Sex Marriage. NY Times A19 (Feb 22. 2007).
85. citing Letter from Rhode Island Attorney Ceneral Patrick C. Lynch to Jack R. Warner. Commissioner. Rhode Island Board of Governors for Higher Education (Feb 20. 2007) (on file with author): Tara Bahrampour, Gays Laud Marriage Decision in Maryland to Recognize Same-Sex Marriages from Other Places. Wash Post B1 (Feb 26.2010).
86. See NCSL Overview (cited in note 24) (reporting that California. Oregon. New Jersey. Nevada, and Washington offer civil unions or domestic partnerships that closely mirror the state benefits of marriage and that an additional three states-Hawaii. Maine, and Washington - offer domestic partnerships with some of the state benefits of marriage).
87. See Massachusetts, 698 F Supp 2d at 248-49. 253:
88. Gill v Office of Personnel Management. 699 F Supp 2d 374. 386-97 (D Mass 2010).
89. See Perry. 704 F Supp 2d at 991-1003.
90. Brevy Cannon, Trailblazers Inaugurate a Tradition, Inside UVA 16 (May 18. 2007).
91. See also New Issue of Inside UVA Highlights the Class of 2007. UVA Today (May 18. 2007). online at http://www.virginia.edu/uvatoday/newsRelease.php?id= 2100 (visited Nov 23. 2010).
92. See Coy Barefoot. According to Custom: Student Traditions at Virginia. U Va Mag 40, 44-45 (Fall 2007) (providing capsule histories of UVA traditions). Note that although most of the traditions described in the article were depicted photographically, the streaking tradition was not.
93. See notes 8-22. 50-65. and accompanying text. See also Robert H. Bork. Alexander M. Bickel, Political Philosopher. 1975 S Ct Rev 419, 419-21
94. (exploring the traditionalism of Alexander Bickel): Alexander M. Bickel, The Morality of Consent 11-25 (Yale 1975)
95. (arguing for Burkean incrementalism in constitutional interpretation): Luban, 43 Stan L Rev at 1040-42 (cited in note 18) (critiquing traditionalism, particularly Anthony Kronman's argument): Anthony T. Kronman, Precedent and Tradition, 99 Yale L J 1029, 1047-64 (1990)
96. (using Burkean philosophy to argue Tor the inherent authority of tradition): Frank I. Michelman, Super Liberal: Romance, Community, and Tradition in William J. Brennan, Jr.'s Constitutional Thought. 77 Va L Rev 1261, 1312-27 (1991)
97. (describing different approaches to tradition taken by Justices John Paul Stevens. William Brennan, and Antonin Scalia): Rebecca L. Brown, Tradition and Insight, 103 Yale L J 177, 212-13 (1993)
98. (critiquing Burkean traditionalism): Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought. 1995 Wis L Rev 303, 318 (comparing Justice Scalia's and Edmund Burke's traditionalism).
99. See note 11. See also Kronman, 99 Yale L J at 1056 (cited in note 49) (discussing Burke's arguments in favor of abiding by legal tradition and precedent). For an argument that, over long periods of time, decentralized lawmaking processes, such as the common law and state constitutional law. tend to produce "constitutionally efficient" traditions, see A.C. Pritchard and Todd J. Zywicki, Finding the Constitution: An Economic Analysis of Tradition's Role in Constitutional Interpretation. 77 NC L Rev 409, 445-57 (1999).
100. A law's longevity does not. of course, necessarily prove the law's usefulness. Legislative inertia, for example, may result in outmoded laws remaining on the books. See Guido Calabresi, A Common Law for the Age of Statutes 6 (Lawbook Exchange 2000).
101. Kronman, 99 Yale L J at 1037-38 (cited in note 49) (asserting the practical value of predictability and reliance interests to refute the suggestion that a tradition of precedent blindly "honor[s] the past for its own sake"), citing Frederick Schauer, Precedent. 39 Stan L Rev 571, 595-97(1987).
102. Id at 1065. The claim that animals lack the capacity for culture and multigenerational collaboration is Kronman's interpretation of Burke. The claim is. in fact, disputed. See Frans de Waal. The Ape and the Sushi Master: Cultural Reflections of a Primatologist 177 (Basic Books 2001).
103. Luban. 43 Stan L Rev at 1052-53 (cited in note 18). See also Jack M. Balkin, Decon-struction's Legal Career. 27 Cardozo L Rev 719, 726 (2005) ("[T]o respect tradition is also to betray, submerge, and extinguish other existing and competing traditions.").
104. See Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family. 115 Harv L Rev 947, 977-87, 993-97 (2002).
105. See. for example, Griswold v Connecticut. 381 US 479, 487 (1965)
106. (Goldberg concurring): Moore v City of East Cleveland. 431 US 494, 503 (1977):
107. Lawrence v Terns. 539 US 558, 568 (2003).
108. See Brown, 103 Yale L.I at 187 (cited in note 49). See also Youngstown Sheet & Tube Co v Sawyer. 343 US 579, 610 (1952) (Frankfurter concurring) ("Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.").
109. See United States v Salerno. 481 US 739, 765 n 6 (1987) (Marshall dissenting) (attributing the tradition of denying bail in capital cases to "the considered presumption of generations of judges that a defendant in danger of execution has an extremely strong incentive to flee").
110. See Batson v Kentucky. 476 US 79, 91 (1986) ("While the Constitution does not confer a right to peremptory challenges, those challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury.") (citations omitted).
111. See In re Winship. 397 US 358, 361-63 (1970) (holding that the proof beyond a reasonable doubt standard is constitutionally required in all criminal proceedings, including those for juveniles, in significant part because of long and widespread adherence to that standard in state and federal courts).
112. See Scott C. Idleman, Religious Premises, Legislative Judgments, and the Establishment Clause. 12 Cornell J L & Pub Pol 1, 27, 59-61 (2002).
113. See R.A. V. v City of St. Paul. 505 US 377, 383 (1992).
114. In explaining why certain classifications are deemed suspect and therefore receive heightened judicial scrutiny under the Equal Protection Clause, the Court has emphasized that an important factor counseling close scrutiny is when there has been a long history of discrimination on the basis of the classification in question. See City of Richmond v J.A. Croson Co. 488 US 469, 492 (1989)
115. (explaining that a history of racial discrimination warrants the application of strict scrutiny to all racial classifications): City of Cleburne v Cleburne Living Center. 473 US 432, 440-41 (1985).
116. citing Massachusetts Board of Retirement v Murgia. 427 US 307, 313 (1976)
117. (explaining that a factor contributing to characterizing a classification as suspect and subject to strict scrutiny is when there has been a history of discrimination based on that classification): Frontiero v Richardson. 411 US 677, 682-85 (1973) (plurality) (explaining that sex-based classifications, like those based on race, warrant strict scrutiny because there has been a similar history of discrimination).
118. Loving. 388 US at 12.
119. Cass R. Sunstein. Sexual Orientation and the Constitution: A Note on the Relationship between Due Process and Equal Protection. 55 U Chi L Rev 1161, 1163 (1988).
120. For Sunstein's fuller discussion, see id at 1174-76. See also Watkins v United States Army. 875 F2d 699, 718-19 (9th Cir 1989) (Narris concurring) (arguing that tradition is irrelevant to equal protection and indeed equal protection to protect homosexuals has traditionally been denied).
121. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law 180 (Free Press 1990).
122. See Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?. 25 Loyola LA L Rev 1159, 1174 (1992) (concluding that "the Thirteenth and Fourteenth Amendments were important, but not because they brought us radical change: they were important as fulfillments of the original promise"): id at 1176 (arguing against the view that the Fourteenth Amendment represented a "radical break from the tradition").
123. Although this Article is principally concerned with equal protection analysis, it is worth noting a similar ambivalence toward tradition by liberal justices in substantive due process cases. Justices Thurgood Marshall and William Brennan. for example, two of the most liberal justices in modem times, were highly critical of tradition-based limitations on the scope of fundamental rights under the Due Process Clause, but they were willing to employ tradition when it served to recognize rights. See Wolf. 57 U Miami L Rev at 148 (cited in note 18) (noting Marshall's dissent in San Antonio Independent School District v Rodriguez. 411 US 1 (1973)):
124. Wolf. 57 U Miami L Rev at 150-51 (cited in note 18) (discussing Brennan's concurrence in Moore. 431 US 494. and his dissent in Cruzan v Missouri Department of Health. 497 US 261 (1990)).
125. Lawrence, 539 US at 577.
126. quoting Bowers. 478 US at 216 (Stevens dissenting).
127. See also Bowers. 478 US at 210 (Blackmun dissenting)
128. ("I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court's scrutiny."): Planned Parenthood v Casey. 505 US 833, 847-48 (1992) (plurality) ("Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause.").
129. See Parents Involved in Community Schools v Seattle School District No I. 551 US 701, 730 (2007).
130. See. for example, Dean v District of Columbia, 653 A2d 307, 315 (DC 1995) (upholding the traditional understanding of the definition of marriage), partially abrogated by Domestic Partnership Judicial Determination of Parentage Act 2009. DC Code § 7-201(4A)-(4B) (West) (amending the marriage statute at issue in Dean and granting domestic partners the same rights and benefits as married couples).
131. See Lewis v Harris. 908 A2d 196, 211, 224 (N.I 2006).
132. See also Baker v State. 744 A2d 864. 885 (Vt 1999) (granting state benefits to same-sex couples and asserting that, "to the extent that state action historically has been motivated by an animus against a class, that history cannot provide a legitimate basis for continued unequal application of the law").
133. See In re Marriage Cases. 183 P3d 384, 401 (Cal 2008)
134. (holding that the state's "interest in retaining the traditional and well-established definition of marriage" is insufficient to withstand heightened scrutiny under the state's equal protection clause): Vamum v Brien. 763 NW2d 862, 873, 875 (Iowa 2009) (rejecting the government's argument that promoting the traditional concept of marriage is sufficiently important to uphold a law denying same-sex marriage).
135. See notes 17-22 and accompanying text. See also Watkins v United States Army. 875 F2d 699, 718 (9th Cir 1989) (Norris concurring) (stating that the Equal Protection Clause calls into question traditional practices when they burden minorities).
136. See FCC v Beach Communications, Inc. 508 US 307. 323 n 3 (1993) (Stevens concurring) (explaining that, under rational basis review, classifications will be upheld unless every conceivable basis that could support them is negated).
137. Although earlier case law applied a cost-benefit analysis to laws challenged on equal protection grounds, since the 1970s, the Court has looked to the purpose behind the law. See Caleb Nelson, Judicial Review of Legislative Purpose. 83 NYU L Rev 1784, 1850 (2008)
138. (stating that in the 1970s the Court began to allow investigations of the legislative process in equal protection cases to determine governmental purpose): Kim Forde-Mazrui, The Constitutional Implications of Race-Neutral Affirmative Action, 88 Georgetown L J 2331, 2354-59 (2000) (explaining how the court determines if there is an illegitimate governmental purpose for equal protection analysis, particularly for racial classifications): id at 2360 (distinguishing the case of suspect classifications, in which the Court requires proof of the actual purpose, from the case of classifications subject to only rational basis review, in which the Court is usually content to consider hypothesized purposes).
139. See Cass R. Sunstein, Naked Preferences and the Constitution. 84 Colum L Rev 1689, 1694-98 (1984) (highlighting the judicial understanding that government actions must be in pursuit of some public value and not merely in pursuit of raw preference): Forde-Mazrui, 88 Georgetown L J at 2354 (cited in note 114) (distinguishing between legitimate and illegitimate purpose, the latter including prejudice and certain stereotypes).
140. United States Department of Agriculture v Moreno. 413 US 528, 534 (1973).
141. As the Court explained in Romer. it is illegitimate to disadvantage a group out of "animosity toward the class of persons affected." and "if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare⋯ desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." 517 US at 634. quoting Moreno. 413 US at 534.
142. See. for example, Loving. 388 US at 11
143. (holding that the governmental purpose in banning interracial marriage was illegitimate because justifications could not stand independent of "invidious racial discrimination"): Hirabayashi v United States. 320 US 81, 100 (1943) (stating that classifications based on race alone are "odious to a free people" and "a denial of equal protection"): Yick Wo v Hopkins, 118 US 356. 373-74 (1886) (explaining that a facially neutral statute violates equal protection if applied "with an evil eye and an unequal hand").
144. Yick Wo. 118 US at 374.
145. See Hernandez v Texas. 347 US 475, 479 (1954).
146. Yick Wo. 118 US at 368-69.
147. Doctrinally. discrimination on the basis of religion comes under the First Amendment rather than the Equal Protection Clause, but the analysis is similar. See. for example, Church of the Lukumi Babalu Aye v City of Hialeah, 508 US 520, 531-40 (1993) (invalidating under the First Amendment an ordinance targeting the practice of Santeria).
148. See Frontiero v Richardson, 411 US 677, 684 (1973)
149. (plurality) (disapproving of the nation's long history of paternalism toward women that resulted in stereotyped statutory distinctions between the sexes): Virginia. 518 US at 542 (holding that state actors cannot exclude individuals based on overbroad generalizations and fixed notions of the sexes).
150. See. for example, City of Richmond v J.A. Croson Co. 488 US 469, 493 (1989)
151. (explaining the use of strict scrutiny to "smoke out" illegitimate classifications such as those based on racial stereotypes): Adarand Constructors, Inc v Perm. 515 US 200, 228 (1995) (stating that strict scrutiny is utilized to distinguish legitimate classifications based on relevant differences from illegitimate classifications).
152. See Shaw v Reno. 509 US 630, 650 (1993)
153. (explaining that race-based districting injures voters by reinforcing stereotypes): Miller v Johnson. 515 US 900, 914 (1995) (rejecting arguments in favor of race-based districting because racial stereotypes underlie the arguments).
154. See Powers v Ohio. 499 US 400, 410 (1991) (refusing to accept as a "defense to racial discrimination [in jury selection] the very stereotype that the law condemns").
155. See Moreno. 413 US at 534 (holding that the challenged classification could not stand because the legislative history showed an intent to exclude hippies from the food stamp program out of a bare desire to harm an unpopular group).
156. See City of Cleburne v Cleburne Living Center. 473 US 432, 450 (1985) (invalidating a zoning ordinance that discriminated against people with mental disabilities because such discrimination rests on irrational prejudice).
157. See Romer, 517 US at 632 (dismissing a statutory amendment because it could be explained only by anti-gay animus).
158. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled. 59 U Chi L Rev 381, 387-88 (1992) (staling that an abstract principle of constitutional jurisprudence "argues that the Equal Protection Clause creates a right of equal concern and respect").
159. See Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the Antidiscrimination Principle. 90 Harv L Rev 1, 7-8 (1976) (describing "racially selective sympathy and indifference⋯ [as] the unconscious failure to extend to a minority the same recognition of humanity, and hence the same sympathy and care, given as a matter of course to one's own group").
160. See Williamson v Lee Optical of Oklahoma, Inc. 348 US 483, 487-88 (1955).
161. See Railway Express Agency v New York. 336 US 106, 109-10 (1949).
162. See Beach Communications. 508 US at 318.
163. See J. A. Croson, 488 US at 505 (acknowledging that remedying identified discrimination is a compelling interest).
164. See Grutter. 539 US at 324.
165. citing with approval Regents of the University of California v Bakke, 438 US 265, 312 (1978) (Powell) ("The atmosphere of 'speculation, experiment and creation' - so essential to the quality of higher education-is widely believed to be promoted by a diverse student body.").
166. See Korematsu v United States, 323 US 214, 220 (1944)
167. (stating that public necessity can justify racial discrimination and holding that the compulsory relocation of Japanese Americans was justified during wartime). Korematsu has. of course, been roundly criticized, including by the Court itself. See. for example, Sternberg v Carhart. 530 US 914, 953 (2000)
168. (Scalia dissenting). The disapproval has not. however, been to the compellingness of national security in a time of war but rather to the unfounded assumption that the Japanese Americans who were interned posed a security threat. See. for example, Grutter, 539 US at 351.
169. See Kahn v Shevin. 416 US 351, 353 (1974)
170. (upholding a state law allowing widows, but not widowers, a property tax exemption because "whether from overt discrimination or from the socialization process." such women faced more difficult barriers in the job market than widowers): Califano v Webster. 430 US 313, 317 (1977) (upholding a law allowing women to exclude more low-eaming years from social security retirement benefits calculations on the ground that "[rjeduction of the disparity in economic condition between men and women caused by the long history of discrimination against women [is] an important governmental objective").
171. See J.A. Croson. 488 US at 505-06
172. (denying that remedying societal discrimination is a compelling governmental interest): Wygant v Jackson Board of Education. 476 US 267, 274 (1986).
173. See Craig v Boren, 429 US 190, 199-200 (1976) (accepting that traffic safety is an important government interest but holding that the law in question did not substantially serve it).
174. See Virginia. 518 US at 539-410 (accepting that diversity of educational opportunities - including single-sex education - was important, but finding that it was not the actual objective of VMI's single-sex policy).
175. See Frontiero. 411 US at 690-91
176. (plurality) (holding that sex-based discrimination cannot be "for the sole purpose of achieving administrative convenience" without violating the Due Process Clause): Palmare v Sidoti. 466 US 429, 433 (1984)
177. (holding that the best interests of children is of the highest importance but cannot justify removing a child from its mother based on the race of her spouse): Buchanan v Warlcy. 245 US 60, 80 (1917) (denying that preserving social order can justify a racial zoning law).
178. See Mississippi Band of Choctaw Indians v Holyfield, 490 US 30, 49-50 (1989)
179. (upholding the Indian Child Welfare Act as a valid measure by Congress to protect Indian cultural survival): Wisconsin v Yoder, 406 US 205, 234-36 (1972) (invalidating a mandatory school attendance law as applied to the Amish, as attending public school would undermine the Amish people's ability to acculturate their children).
180. See Brown v Board of Education. 347 US 483, 493 (1954) (describing the importance of public education in awakening cultural values and preparing children for good citizenship in a democratic society).
181. See John E. Nowak and Ronald D. Rotunda, Principles of Constitutional Law § 14.3 at 376 (West 3d ed 2007).
182. See Lee Optical, 348 US at 487-88.
183. Beach Communications, 508 US at 318.
184. See Nashville, Chattanooga & St. Louis Railway v Browning. 310 US 362, 370 (1940).
185. See Railway Express, 336 US at 109.
186. See United States v Lawrence. 951 F2d 751, 755 (7th Cir 1991)
187. (holding that a disproportionate sentencing scheme was rationally related to the purpose of combating the effects of crack cocaine): United States v Buckner. 894 F2d 975, 980 (8th Cir 1990) (finding that the disproportionate sentencing scheme was rationally related to the purpose of protecting the public welfare).
188. Indeed, the Court has suggested that its deference to the legislature regarding the societal consequences of nonsuspect classifications should be virtually absolute, stating that "[t]he calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility." Personnel Administrator of Massachusetts v Feeney. 442 US 256, 272(1979).
189. See Grutter. 539 US at 308.
190. See. for example, J.A. Croson, 488 US at 493 (applying strict scrutiny to a minority set-aside program because all racial classifications risk "stigmalic harm" and "racial hostility").
191. Ethicists generally contrast deontological accounts of morality with consequentialist theories that measure the moral value of actions by their consequences. Not all deontological theories deem the consequences of actions irrelevant, but consequences are not the primary basis for determining the morality of actions. For an explanation of deontological moral theory, see Robert G. Olson, Deontological Ethics, in Paul Edwards, ed. 2 The Encyclopedia of Philosophy 343, 343 (Collier-Macmillan 1967).
192. See Boiling v Sharpe. 347 US 497, 499-500 (1954) (describing the "unfairness" of racial segregation in violation of the Due Process Clause of the Fifth Amendment).
193. Hirabayashi, 320 US at 100.
194. See also Loving. 388 US at 11.
195. Gnitter. 539 US at 341
196. ("We acknowledge that 'there are serious problems of justice connected with the idea of preference itself.'"), quoting Bakke. 438 US at 298 (Powell).
197. See Boren, 429 US at 204
198. ("[P]roving broad sociological propositions by statistics⋯ is in tension with the normative philosophy that underlies the Equal Protection Clause."): J.E.B. v Alabama. 511 US 127, 139 n 11 (1994) (noting that statistical support for gender-based differentiations cannot justify impermissible stereotypes under the Equal Protection Clause).
199. See J.A. Croson, 488 US at 505.
200. Id at 492 (noting that the state has an interest in remedying identified discrimination or discrimination in which the state has been a "passive participant"): id at 518 (Kennedy concurring) (noting that states have a duty to remedy discrimination in some circumstances). See also Kim Forde-Mazrui, Taking Conservatives Seriously: A Moral Justification for Affirmative Action and Reparations. 92 Cal L Rev 683, 692 (2004). 162 442 US 256, 277 (1979) (upholding a hiring preference in favor of veterans on the grounds that it was not intended to discriminate in favor of men but rather in favor of veterans, a group "perceived to be particularly deserving").
201. (invalidating a racially restrictive zoning law despite the state's concern about social disruption from integration): Cleburne. 473 US at 448
202. (invalidating the denial of a permit for a home for the mentally disabled despite asserted fears of crime). As Palmore v Sidoti. 466 US 429 (1984).
203. makes clear. a state actor's pursuit of an otherwise legitimate interest can be tainted by giving effect to illegitimate beliefs even if the state actor does not itself hold those beliefs. In Palmore. the state actor was a Florida trial court that removed a child from her mother's custody because the mother's second marriage was to a black man. Id at 431. The Supreme Court accepted that the trial court was concerned Tor the welfare of the child, who might experience social prejudice toward her mother's interracial marriage, and the Court made no suggestion that the trial judge himself harbored such prejudice. Id at 432. The Court nonetheless held the trial court's action unconstitutional. Id at 433. Although "the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause." the Court explained, that interest could not be achieved by giving effect to private prejudice. Id. "Private biases may be outside the reach of the law. but the law cannot, directly or indirectly, give them effect." Id.
204. See West Virginia State Board of Education v Barnette, 319 US 624, 642 (1943).
205. (noting the law's "infringement of rights long freely enjoyed"); Pierce, 26S US at 534-35 (holding that a compulsory public education law "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control").
206. See Cass R. Sunstein, Burkean Minimalism, 105 Mich L Rev 353, 366-69 (2006).
207. See Maimon Schwarzschild, Marriage, Pluralism, and Change: A Response to Professor Wax, 42 San Diego L Rev 1115, 1116 (2005).
208. See. for example, George W. Dent, Jr. The Defense of Traditional Marriage. 15 J L & Polit 581, 616-27 (1999).
209. Consider Oliver Wendell Holmes. Jr. The Path of the Law. 10 Harv L Rev 457, 469 (1897) ("It is revolting to have no better reason Tor a rule of law than that so it was laid down in the lime of Henry IV.").
210. Cleburne. 473 US at 440.
211. See also Feeney. 442 US at 272
212. ("[W]hen there is no 'reason to infer anlipalhy," it is presumed that 'even improvident decisions will eventually be rectified by the democratic process.'"), quoting Vance v Bradley. 440 US 93, 97 (1979).
213. United States v Carotene Products Co. 304 US 144, 152 n 4 (1938).
214. See. for example, Dent. 15 J L & Polit at 589 (cited in note 176): Milton C. Regan, Jr. Reason, Tradition, and Family Law: A Comment on Social Constructionism. 79 Va L Rev 1515, 1529-30 (1993) (arguing that one account of the social constructionist approach to marriage accepts tradition as "a legitimate point of departure in evaluating state regulation" because "tradition represents a form of practical reasoning").
215. See Marsha Garrison, Reviving Marriage: Could We? Should We?. 10 J L & Fam Stud 279, 284-85, 298-304 (2008) (describing a number of benefits of marriage not related to the law and how the vast majority of Americans still get married at some point in their lives).
216. See. for example, Erwin Chemerinsky. Same Sex Marriage: An Essential Step towards Equality. 34 Sw U L Rev 579, 592-93 (2005) (rejecting categorically the notion that marriage will be harmed if same-sex partners can marry and noting that no harm resulted from overturning bans on interracial marriage).
217. See Andrew J. Cherlin, The Marriage-Go-Round: The State of Marriage and the Family in America Today 15-20 (Knopf 2009).
218. Id. See also Interview with Andrew J. Cherlin, online at http://www.randomhouse.com/catalog/display.pperl?isbn=97S0307266S97&view= auqa (visited Nov 23. 2010).
219. Consider Teemu Ruskola, Minor Disregard: The Legal Construction of the Fantasy That Gay and Lesbian Youth Do Not Lxist. 8 Yale J L & Feminism 269, 287 (1996).
220. See New York City Transit Authority v Beazer. 440 US 568, 591-92 (1979):
221. Lee Optical. 348 US at 491.
222. See Railway Express, 336 US at 110.
223. See. for example, Romer. 517 US at 626-31:
224. Plyler v Doe. 457 US 202, 229 (1982).
225. See Romer. 517 US at 635 (finding it "impossible to credil" Colorado's rationale for Amendment 2 because "the breadth of the amendment
226. See Beach Communications. 508 US at 313 (articulating a version of rational basis review under which a classification will be upheld so long as any conceivable, legitimate interest is at all served by it).
227. See Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection. 86 Harv L Rev 1, 20-24 (1972) (suggesting a rational basis scrutiny model with "bite").
228. See George W. Dent, Jr. Traditional Marriage: Still Worth Defending. 18 BYU J Pub L 419, 437 (2004) (stating that "recognition of same-sex marriage will make traditional marriage less popular by making it less special, less honored").
229. See generally Kerry Abrams and Peter Brooks. Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation. 21 Yale J L & Humanities 1 (2009)
230. (critiquing the accidental procreation argument). See also Goodridge v Department of Public Health. 798 NE2d 941, 995 (Mass 2003) (Gordy dissenting) ("The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other.").
231. The societal pressure in the United States to marry is substantial. See Edward J. Alessi, Staying Put in the Closet: Examining Clinical Practice and Countertransference Issues in Work with Gay Men Married to Heterosexual Women. 36 Clin Soc Work J 195, 196 (2008)
232. (noting that the motivation of gay men to enter into an opposite-sex marriage may include pressures on a gay man to marry from his family as well as the desire to hide or deny the "feared homosexual orientation"): Daryl J. Higgins, Same-Sex Attraction in Heterosexually Partnered Men: Reasons, Rationales and Reflections. 21 Sexual & Relationship Therapy 217, 218-19, 221 (2006)
233. (noting that societal homophobia and religious intolerance may cause men with same-sex attractions to enter into an opposite-sex marriage): Marie A. Failinger, A Peace Proposal for the Same-Sex Marriage Wars: Restoring the Household to Its Proper Place, 10 Will & Mary J Women & L 195, 248 (2004).
234. *5 (unpublished presentation. American Psychological Association Convention. Aug 2001). online at http://www.apgl.fr/ documents/APAWkshp2-2001.pdf (visited Nov 23. 2010).
235. See also Charlotte J. Patterson, Family Relationships of Lesbians and Gay Men. 62 J Marriage & Earn 1052, 1058 (2000)
236. (noting that most gay parents are assumed to have become parents in opposite-sex marriages, although there is an increasing trend in recent years for gay parents to become parents within same-sex relationships): James G. Pawelski, et al. The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-Being of Children, 118 Pediatrics 349, 359 (2006) (stating that "most children whose parents are gay or lesbian have experienced the divorce of their biological parents").
237. See Wax, 42 San Diego L Rev at 1083 (cited in note 13) (reflecting that "[t]he data [against same sex marriage] either do not yet exist or are radically inconclusive"). See also Perry v Schwarzenegger, 704 E Supp 2d 921, 948-49 (ND Cal 2010).
238. Amy L. Wax, Traditionalism, Pluralism, and Same-Sex Marriage. 59 Rutgers L Rev 377, 384 (2007).
239. See Brown, 103 Yale L J at 181 n 12 (cited in note 49). citing Rebecca L. Brown, The Dark Side of Tradition (unpublished manuscript) (on Tile with author).
240. See Nancy C. Marcus, Beyond Romer and Lawrence: The Right to Privacy Comes Out of the Closet. 15 Colum J Gender & L 355, 391 (2006).
241. See Washington v Davis. 426 US 229, 241-42 (1976).
242. See Shaw v Reno. 509 US 630, 650 (1993)
243. (holding that racial gerrymandering should be subject to strict scrutiny because of "our country's long and persistent history of racial discrimination in voting"): City of Cleburne v Cleburne Living Center. 473 US 432, 440 (1985)
244. ("[R]ace. alienage, or national origin⋯ are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy - a view that those in the burdened class are not as worthy or deserving as others."): Fron-tiero v Richardson. 411 US 677, 682, 684-85 (1973) (plurality) (noting that a history of discrimination is a reason to subject classifications based on race, alienage, national origin, or sex to a heightened level of judicial scrutiny).
245. See City of Richmond v J.A. Croson Co. 488 US 469, 492 (1989): [T]he purpose of strict scrutiny is to "smoke out" illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen "fit" this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.
246. See Frvnticro. 411 US at 684-88 (plurality):
247. Virginia. 518 US at 531.
248. See Virginia. 518 US at 555.
249. See Craig v Boren. 429 US 190, 197-98 (1976):
250. Virginia. 518 US at 524.
251. See Virginia. 518 US at 571 (Scalia dissenting)
252. (explaining how the Court's lest resembles strict scrutiny): Denise C. Morgan, Anti-subordination Analysis after United States v Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools. 1999 U Chi Legal F 381, 408-09.
253. See San Antonio Independent School District v Rodriguez. 411 US 1, 28 (1973).
254. See Michael A. Helfand, The Usual Suspect Classifications: Criminals, Aliens and the Future of Same-Sex Marriage, 12 U Pa J Const L 1, 15 (2009).
255. See. for example, Parents Involved in Community Schools v Seattle School District No 1. 551 US 701, 720 (2007).
256. See. for example, J. A. Croson, 488 US at 497
257. (explaining that a governmental interest in remedying past discrimination must be based on findings of a constitutional or statutory violation), discussing Wygantv Jackson Board of Education, 416 US 267, 274 (1986).
258. J.A. Croson, 488 US at 497, 499.
259. See. Tor example, William N. Eskridge, Jr. Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation. 32 Harv J L & Pub Pol 193. 199 (2009)
260. (arguing that the Bowers decision shows the "plasticity of tradition"). See also Laurence H. Tribe and Michael C. Dorf. On Reading the Constitution 98-99 (Harvard 1991)
261. (commenting that "historical traditions are susceptible to even greater manipulation than are legal precedents" and referring to the "manipulabilily of historical traditions"): Wolf. 57 U Miami L Rev at 12S-33 (cited in note 18) (summarizing fundamental rights cases in which both sides employed tradition to justify their positions): Bartlett. 1995 Wis L Rev at 317 (cited in note 49) (describing as fiction the notion that tradition has readily ascertainable content and that conflicting traditions have always existed simultaneously): Luban. 43 Stan L Rev at 1046 (cited in note 18) (describing tradition as a "heavily edited anthology of the past"): J.M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction. 11 Cardozo L Rev 1613, 1618 (1990) (arguing that the meaning of a tradition depends on how narrowly it is viewed and is subject to selective understanding depending on one's predilections).
262. See Andrew E. Taslilz, Hate Crimes, Free Speech, and the Contract of Mutual Indifference. SO BU L Rev 1283, 1322 (2000).
263. See Loving, 388 US at 3 (quoting the unpublished opinion of the Circuit Court of Caroline County. Virginia).
264. Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption 245 (Pantheon 2003).
265. citing Committee on the Judiciary Report Respecting Distinctions of Color. Massachusetts House of Representatives (Feb 25. 1839). reprinted in The Liberator A4 (Mar 15.1839).
266. The West Chester and Philadelphia Railroad Co v Miles. 55 Pa 209, 213 (1867).
267. See Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective. 59 U Chi L Rev 453, 460-61 (1992).
268. See Phillip E. Johnson, Concepts and Compromise in First Amendment Religious Doctrine. 72 Cal L Rev 817, 836 (1984).
269. Kim Forde-Mazrui, Book Review, Live and Let Love: Self-Determination in Matters of Intimacy and Identity, 101 Mich L Rev 2185, 2187 (2003).
270. Cleburne, 473 US at 453 n 6 (Stevens concurring) (citation omitted) (alteration in original).
271. See Kevin T. Berrill, Anti-gay Violence and Victimization in the United States: An Overview, in Gregory M. Herek and Kevin T. Berrill. eds. Hate Crimes: Confronting Violence against Lesbians and Cay Men 19, 19-25 (Sage 1992):
272. Yvonne Zylan. Passions We Like⋯ And Those We Don't: Anti-gay Hate Crime Laws and the Discursive Construction of Sex, Cender, and the Body. 16 Mich J Gender & L 1, 11 (2009).
273. See Crutter. 539 US at 343
274. (upholding race-based admissions preferences): Adarand Constructors, Inc v Pena. 515 US 200, 237 (1995)
275. (rejecting the notion that strict scrutiny is "strict in theory, but fatal in fact." and providing an example of a statute that had recently survived strict scrutiny because the race-based action was narrowly tailored to further a compelling governmental interest), quoting Fullilove v Klutznick, 448 US 448, 519 (1980) (Marshall concurring).
276. 517 US at 634. citing Department of Agriculture v Moreno 413 US 528, 534 (1973).
277. See Rebecca L. Marino, Manifestations of Homophobia: Attitudes toward Social and Cultural Aspects of Homosexuality among Male and Female College Students. 1 Epistimi 34, 34 (2004) (noting that although homophobia has not disappeared in the United States, it has decreased over the past three decades).
278. See Romer. 517 US at 634-35:
279. Lawrence, 539 US at 571-72.
280. See Danielle Kie Hart, Same-Sex Marriage Revisited: Taking a Critical Look at Baehr v. Lewin. 9 Geo Mason U Civ Rts LJ 1, 12-26 (1998).
281. Id at 37-47: Elizabeth S. Scott, A World without Marriage. 41 Fam L Q 537, 538 (2007) ("Vestiges of the religious origins of marriage continue to shape attitudes and inform the views of many marriage defenders.").
282. Ralph Richard Banks, Why Do So Many People Oppose Same-Sex Marriage?. 5 Stan J CR & CL 409, 421 (2009).
283. See State v McAllister. 136 P 354, 355 (Or 1913)
284. (describing sodomy as a "crime against nature being too well understood and too disgusting to be herein more fully set forth"): State v Start. 132 P 512, 513 (Or 1913)
285. ("[Sodomy] is an offense against nature. There can be no difference in reason whether such an unnatural coition takes place in the mouth or in the fundament⋯. The moral filthiness and iniquity against which the statute is aimed is the same in both cases."): People v Hall, 16 NYS2d 328, 329 (NY County Ct 1939) ("[T]he defendant had been a person with abnormal, unnatural and perverted sexual desires. This crime is unusual and unnatural. The statute refers to it as a crime against nature. A normal person would not commit the crime.").
286. Bowers. 478 US at 187, 196 (holding, in a five-to-four decision, that a state law criminalizing homosexual conduct was constitutional).
287. *36 (US filed Dec 17. 1985) j.
288. *47-48 (US Mar 26. 2003) (available on Westlaw at 2003 WL 1702534)
289. *45-46 (stating that it would violate equal protection to discriminate against people simply because of their sexual orientation including, for example, by prohibiting homosexuals from attending public school).
290. *48 n 30. quoting Michael W. McConnell, Book Review, The Role of Democratic Politics in Transforming Moral Convictions into Law. 98 Yale L J 1501, 1504 (1989) ("Tradition⋯ is composed of the cumulative thoughts and experiences of thousands of individuals over an expanse of time.").
291. See Lawrence, 539 US at 571.
292. See. Tor example, Kwame Anthony Appiah. What Will Future Generations Condemn Us For?. Wash Post B1 (Sept 26. 2010)
293. (arguing that those who defend customs later thought to be morally pernicious "tend not to offer moral counterarguments but instead invoke tradition, human nature or necessity"): Jonathan Martin and Ben Smith. The New Battle: What It Means to Be American. Politico (Aug 20. 2010). online at http://www.politico.com/news/stories/0810/41273.html (visited Nov 23. 2010)
294. (describing the defining debate of President Barack Obama's term as one "related to the role of government and the very meaning of America"): Dahleen Glanton. In Mississippi, Flag Vote Shows Deep Divide: "World is Watching" State Referendum. Chi Trib N1 (Apr 16. 2001) (reporting on a ballot initiative to remove the Confederate flag from the Mississippi state flag and quoting a local opponent who defended the flag by asserting that it was a "part of our history and [J always will be").
295. Thomas Becnel. Beneath an Infamous Rebel Flag in East Tampa. Sarasota Herald-Trib A1 (Oct 27. 2010) (describing a thirty-by-fifty-foot Confederate flag over a Florida interstate and the resulting local controversy over whether it is a symbol of hate or Southern heritage).
296. For evidence of recent justifications of laws on the grounds that they target "unnatural" behavior, see. for example, Elizabeth A. Tedesco, Note. "Humanity on the Ballot": The Citizen Initiative and Oregon's War over Gay Civil Rights, 22 BC Third World L J 163, 164 (2002).
297. For a mention of the argument that marriage is "by definition" between a man and a woman, see Kevin G. Clarkson, David Organ Coolidge, and William C. Duncan, The Alaska Marriage Amendment: The People's Choice on the Last Frontier. 16 Alaska L Rev 213, 230 n 105 (1999).
298. Commenting on the historical dangers of morality-based justifications. Professor Andrew Koppelman observed that "the post-Civil War Southern Black Codes⋯ undeniably rested on powerful moral convictions." Andrew Koppelman. Why Discrimination against Lesbians and Cay Men Is Sex Discrimination. 69 NYU L Rev 197, 284 (1994). To be clear, the concern over morality-based justifications is not that morality cannot justify a discriminatory law. As previously discussed, the Court has upheld laws based on moral justifications of both a deonto-logical and consequentialist nature. See Part II. A. The point here is simply that bare assertions of morality should not be accepted at face value but rather should be examined to ensure that the moral theory relied on is constitutionally acceptable.
299. See City of Richmond v JA. Croson Co. 488 US 469, 493 (1989).
300. See Bcrnat v Fainter. 467 US 216, 219 (1984).
301. See Virginia. 518 US at 535:
302. Grutter. 539 US at 318-20.
303. See Lemon v Kurtzman, 403 US 602, 612 (1971).
304. Consider. for example, Abner S. Greene, The Political Balance of the Religion Clauses. 102 Yale L J 1611, 1631(1993).
305. Washington v Davis, 426 US 229, 253 (1976) (Stevens concurring).
306. See Arlington Heights, 429 US at 270 n 21
307. (explaining that the burden of proof is on the stale once it is found that race played a role in the decisionmaking process), citing Mt. Healthy City School District Board of Education v Doyle, 429 US 274, 287 (1977):
308. Daniel A. Farber, William N. Eskridge, Jr. and Philip P. Frickey, Cases and Materials on Constitutional Law: Themes for the Constitution's Third Century 221 (West 4th ed 2009):
309. George A. Rutherglen and John J. Donohue III. Employment Discrimination Law and Theory 98 (Foundation 2005) (explaining mixed-motive analysis for statutes other than Title VII. such as the Age Discrimination in Employment Act and § 1981 of the Civil Rights Act).
310. See Rutherglen and Donahue. Employment Discrimination Law at 97-98 (cited in note 281). See also 42 USC § 2000e-2(m) ("Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex. or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.").
311. Half of the states pennit first-cousin marriages. Some of those states require, however, that at least one partner be over a certain age. such as sixty, or be infertile. National Conference of State Legislatures. State Laws Regarding Marriages between First Cousins, online at http://www.ncsl.org/ default.aspx?tabid=4266 (visited Nov 23. 2010). One state. Maine, pennits first-cousin marriage on the condition of genetic counseling. Id. Interestingly, inability to procreate as a condition of marriage has historical precedent regarding interracial marriage. For example, in the early twentieth century "a [legislative] proposal in New York [that] would have tolerated racial intermarriage provided the couple submitted to sterilization." Forde-Mazrui. 101 Mich L Rev at 2189 (cited in note 245). citing Kennedy. Interracial Intimacies at 255 (cited in note 240).
312. *922 (unpublished PhD dissertation. University of Southern California. 1979) (on file at the University of Wisconsin-Madison).