Tradition!

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Here in Anatevka, we have traditions for everything: how to how to eat, how to sleep, how to wear clothes. . . This shows our constant devotion to God . . . And because of our traditions, every one of us knows who he is, and what God expects him to do.

            So spoke Tevye the milkman in the classic musical A Fiddler on the Roof. But, after reading his dissent in Obergefell v. Hodges, these words could just as easily have been uttered by Supreme Court Justice Samuel Alito.

            The key tension in the musical is between Tevye’s traditional right “as master of the house,” to have the final word on who his daughters will marry, and the willful determination of his daughters to select their own mates.

            Though the right of parents to chose spouses for their children went out of style hundreds of years ago for most of Western culture, Alito insists that third parties--in this case the States--should have the power to prevent two people from making this choice for themselves because of a right to rely on a “traditional” definition of marriage.

            Alito objects to the Obergefell majority’s determination that the purpose of marriage is to “enhance the happiness of persons who choose to marry.” He allows that this may be the understanding  “shared by many people today,” but he argues that this understanding “is not the traditional one.” Without a single citation in support of his claim, he asserts that “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.”

            His opinion goes downhill from there.

            The idea that states encourage marriage for the creation and welfare of children is a fanciful one that is inconsistent with all but the most recent history.  For most of history, children were considered to be chattels of the father.  People had large families, first of all because they had only a casual understanding of birth control and second because they wanted to enhance the prospects of the family for economic survival.  Until relatively modern times in the developed world, when childhood death became rare, people had many children to insure against the possibility that children would die and leave their parents destitute in their dotage.

            If procreation were the key to marriage, why aren’t people who are unable or unwilling to have children nevertheless entitled to enjoy the “special benefits” states confer on mixed-sex couples who marry?

            The answer is, of course, that while procreation might have been part of what some people thought “traditional marriage” was all about, it was never the full reason for marriage.

            Traditional marriage has always been about two things.  First of all, it was an economic arrangement between two people and two families.  As a former real estate lawyer, I’ve always been struck by the similarity between the language spoken at a traditional Christian marriage ceremony and the language you find in deeds that evidence ownership of land. 

            In my own tradition, Jewish European families used to arrange marriages for their children like Tevye did, based, in part, on economic considerations.  Tevye wanted his oldest daughter to marry the town butcher so that she (and perhaps the rest of the family) would never go hungry.  Before a Jewish wedding takes place, the groom must deliver to the bride a written undertaking called a Ketuba that describes his obligation to provide for the bride’s material needs and enumerates the property he must give her if the marriage ends.

            The second thing traditional marriage is about is, frankly, who has access to the bride’s body. Justice Alito is right to focus on sex as a key element of marriage, but sex has never been solely about making children.  Take any piece of great literature from ANY point in history, look at the sexual motivations of the characters, and you’ll notice that making children has nothing to do with why they want to have sex.

            Traditional marriage laws define the person who has the exclusive legal right to engage in sexual relations with a particular woman. Given the power of the human sex drive, no society can exist for long if there aren’t laws regulating the use of what the Supreme Court once called “the sexual powers.”  In Maryland the unreasonable refusal to engage in sexual relations with one’s spouse used to be grounds for divorce while the failure to produce offspring, on the other hand was and is not.  In a sense, like so many other laws regarding personal relations, traditional marriage laws exist to protect the prerogatives of men.

            What Justice Alito says he wants to protect is the right of States to select an arbitrary definition of who gets the benefits States try to direct toward families based on one conception of marriage.  A state shouldn't be able to do this unless the State has a damned good reason.

            What really bothers Justice Alito, though, is the fact that his side has lost the culture war.  The majority  opinion “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.  In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. . . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”  He adds (without irony) that “By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.”

            Tevye ultimately could not control his daughters, despite the strength of his tradition.  They marry who they love. “It’s a whole new world” he muses to his wife.  Well, yes.  And I’d like to think that in this new world, we are not bound by traditions that don’t lead us to happiness.  In this new world, the key American tradition that leads us to happiness is equality before the law.