Forde-Mazrui Examines Tradition Argument Against Same-Sex Marriage, Steps Down from Race and Law Center

October 6, 2010

Ninety percent of states have laws limiting marriage to opposite-sex couples. In litigation challenging such laws, states have defended them on the grounds that opposite-sex marriage is a tradition. Law School Professor Kim Forde-Mazrui recently tackled the tradition argument in an article to be published in the January 2011 issue of the University of Chicago Law Review.

Kim Forde-Mazrui
Kim Forde-Mazrui

Forde-Mazrui teaches Constitutional Law, Criminal Law, Employment Discrimination, and Race and Law. His scholarship examines constitutional equality, including race and sexual orientation, in contexts such as child placement, marriage, law enforcement, jury selection, affirmative action and reparations.

What is the tradition argument against same-sex marriage?

I focus on equal protection challenges to bans on same-sex marriage. In defending against such challenges, states often cite the traditional status of opposite-sex marriage as a justification for denying same-sex marriage. They argue that traditions defined by law for many generations reflect time-tested wisdom and that changing long-standing traditions may have unintended and irreversible consequences. In the case of traditional, opposite-sex marriage, they contend that permitting same-sex marriage could unalterably weaken the institution of marriage. Courts should, they conclude, uphold traditional marriage laws and leave it to the people and their elected officials to allow same-sex marriage if and when they are ready.

How do supporters of same-sex marriage respond to the tradition argument?

Same-sex marriage supporters contend that preserving tradition is an invalid justification for discriminatory laws, including laws that limit marriage to opposite-sex couples. Pointing to now-repudiated traditions, such as race and sex discrimination, they argue that progress on civil rights has been achieved by breaking with outmoded traditions of a less enlightened time. In the case of marriage, they contend, excluding same-sex couples from the institution unnecessarily burdens those couples and their families.

In your forthcoming article, you conclude that preserving tradition can legally justify bans on same-sex marriage. Why?

I conclude that tradition can serve as a legally sufficient justification for a law challenged on equal protection grounds if a court applies the most deferential standard of rational basis scrutiny. Under that standard, a court asks only whether there is any conceivable basis supporting the challenged law. The long-standing nature of a tradition, including that of opposite-sex marriage, does provide some reason to assume the tradition has been useful to society. The tradition-based assumption is not utterly implausible and, accordingly, a court requiring only some conceivable rationale could uphold same-sex marriage bans.

Your article argues, however, that courts should treat tradition as a "suspicious" justification. What do you mean?

Courts should treat tradition-based justifications as suspicious, that is, as likely concealing ulterior, invalid motivations, such as animosity or unfounded fear. Although preserving tradition is not invalid per se, it is a less persuasive justification than demonstrating a law's benefits or other valid moral foundation. Emphasizing the traditional status of a law thus suggests that the law lacks a persuasive moral basis and does not produce demonstrable benefits. Consider, for example, laws against incest. While such laws are traditional, we do not rely on that fact to justify them. Instead, we justify bans on incest because our society morally disapproves of it and because incest carries an unacceptable risk of exploitation, abuse and genetic defect. With bans on same-sex marriage, in contrast, the harms that might follow from allowing same-sex marriage are highly speculative. Moreover, justifying bans on same-sex marriage on grounds of moral disapproval risks constitutional invalidation in light of recent Supreme Court cases striking down laws that discriminate based on sexual orientation. Consequently, opponents of same-sex marriage likely resort to tradition as a seemingly benign justification in lieu of expressing the concerns that actually motivate their opposition.

Does it necessarily follow from your analysis that courts should invalidate bans on same-sex marriage?

No. The point is that if courts uphold bans on same-sex marriage, it should not be on the ground of tradition. Instead, courts should require that states defending such laws demonstrate that permitting same-sex marriage would have harmful consequences or would otherwise violate constitutionally acceptable moral standards. Perhaps states could meet this burden. But they should have to put forward and prove their real concerns rather than hiding behind the argument of tradition.

You recently concluded a seven-year tenure as the director of the Center for the Study of Race and Law. Can you reflect on the Center's accomplishments during your leadership?

I am proud of the Center's accomplishments during its first seven years. We organized numerous events for the law school and university communities, including long and short courses; lectures by law school, university and external speakers; panel discussions and debates; faculty workshops; student paper competitions; student research awards; and three major conferences two of which produced articles published in UVA law journals. Additionally, we honored, through public events and awards, the life's work of three civil rights pioneers: Oliver W. Hill, Sr. , Julian Bond, and Charles Sherrod. The Center also published a school integration manual; facilitated an affirmative action survey of law students for an outside research project; and co-authored a winning brief to the Supreme Court in Kimbrough v. U.S. (2007) (holding that trial judges have discretion to depart from crack/powder sentencing guidelines). The Center also organized a race and law concentration for students interested in focusing their studies on race-related courses.

How were you able to accomplish so much?

I could not have done so without the help of others, including my Assistant Director Tim Lovelace '06, the law school's administration and staff and, most importantly, the dozens of law students who served on the Center's Executive Board. It was, in fact, students who proposed the idea of the Center to Dean John Jeffries back in 2003. Their active participation over the years in planning and organizing Center programs has been invaluable.

Why are you stepping down?

Despite the generous support I received from others in running the Center, it still consumed enormous amounts of my time, preventing me from spending as much time as I would like on my own scholarship and on law school governance. Accordingly, a year and a half ago, I asked Dean Paul Mahoney if I could step down by the summer of 2010. My "swan song" was the two and a half day conference at the law school in late January of 2010, entitled "Fifty Years After the Sit-Ins: Reflecting on the Role of Protest in Social Movements and Law Reform." The conference was a stunning success, drawing participation by interdisciplinary faculty from across the country.

What's next for you and the Center?

I plan to devote more time to scholarship, including a casebook on Race and Law, and to law school governance, i.e. ,service on important committees through which faculty help to run the law school. As for the Center, I could not be more pleased for its future than to have Professor Alex Johnson take over the reins. He has extensive administrative experience, including as Dean of the University of Minnesota Law School and, before that, as Vice Provost at UVA. I anticipate that he will build on the Center's strengths and take it in new and exciting directions.

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