From the concurrence:
Nor is Justice Madsen's claim that "history and tradition are not static," Madsen, J., op. at 26 coherent, at least outside the context of a George Orwell novel. Our history and tradition are real and ascertainable. This court and the United States Supreme Court have always applied these principles to inform the understanding of the privileges and immunities clause, rather than current political notions. Under our constitutional separation of powers, such issues are for the legislature and/or the people, and here the legislature has clearly spoken. This is not to suggest the constitutional right of marriage may be redefined at will by legislative process; that may be a case for a different day. [concurring opinion at 14, emphasis added]
From Professor Balkin's piece:
Claiming to speak in the name of tradition can also be a kind of betrayal in several different ways. First, traditions are often contested. Hewing to one particular vision of tradition obliterates other interpretations of the past and other alternatives for the future. Tradition never speaks with one voice, although, to be sure, persons of particular predilections may hear only one. In this way, a tradition can be a kind of extradition, banishing other perspectives and handing them over to their enemies, so to speak. Second, to respect tradition is also to betray, submerge, and extinguish other existing and competing traditions. It can lead us to focus on a falsely unitary or unequivocal story about the meaning of the past when we should recognize the past as a complicated set of perspectives in tension with each other. Finally, to act in the name of a tradition is often to betray the tradition itself, by disregarding the living, changing features of a tradition and substituting a determinate and lifeless simulacrum. (726)
Professor Balkin is playing on the shared root of "tradition" and "betrayal." To advocates of a "living constitution," the call to look towards tradition seems like a betrayal of the active liberty that animated the founders in writing a constitution; men who wrote a document designed to outlive them; a government of laws, not men. Tradition also runs up against the same problem that I have with Kant--the prescribed action mandated by tradition (just like that of the "categorical imperative") varies wildly depending on how broadly or narrowly one interprets the tradition. If the accepted tradition is "one man, one woman," then gay litigants will likely lose. If the accepted tradition is "marriage is an important institution that all should have the right to participate in, on equal terms," then gay litigants seem more likely to win. Both seem to have solid roots in how we understand the "tradition" of marriage. More importantly, at their inception these two concepts were not seen to be in opposition, while currently we see a severe tension. The "ideological drift" by which concepts which used to stand for one idea come to stand for something else entirely is another point in favor of a heterodox traditional standpoint. Balkin continues:
The phenomenon of ideological drift is related to the multivalent meanings of a tradition, and to the important connections between tradition and betrayal. Ideological drift guarantees that the concrete exemplars and symbols of a tradition will take on multiple and conflicting meanings and implications over time. As a result, different groups can claim to be faithful adherents of the tradition and yet wish to continue it in radically different ways. Traditions are thus the result of and the site of interpretive struggles between adherents all of whom claim to be faithful to the tradition. Each group, however, wishes to consolidate and continue the tradition in ways that seem like a betrayal from the perspective of the other camps. We might say, then, that the seeming unity of any tradition is actually, on closer inspection, a complicated set of nested oppositions, whose conflicts may appear only with the passage of time and the arrival of new circumstances. Traditions often try to submerge and suppress their multiple meanings, enshrining some interpretations as orthodoxy and banishing others as heresy. Yet the multiplicity of meanings and the instability of interpretations continue to emerge incessantly as the tradition travels through history. (731-32)
Both camps in the gay marriage debate see themselves as preserving the tradition, although only one camp has managed to appropriate the label "tradition" to its side. But this is a misnomer--both parties are defending a different branch of "traditional marriage", branches which once were seen as harmonious but now have been revealed to be in conflict. The fact that this conflict has only truly emerged recently does not make either side anti-traditional: the side that wishes to banish the view of marriage as something accessible to all, on equal terms, is equally anti-traditional as the side that wishes to banish the view of marriage as one man, one woman. And of course, this sort of Hegelian dialectic is not an aberration anyway: traditions are always evolving, taking on new roles and casting off old ones. The tradition of marriage as primarily a contract designed seal political alliances has largely been abandoned, for example. To say that tradition is fluid is not anything Orwellian, it is a recognition of tradition as a part of history, and history, as they say, has been going on for a long time and has seen many changes.