Great piece from Professor R.J. Snell of Eastern University over at the Public Discourse. Contra Judge Walker, can tradition alone provide a rational basis for law?
Custom is an expression of reason and will made by the whole people with their repeated actions over time, and since an expression of reason and will is a promulgation of law, custom is a promulgation of law, with the same binding force.
Of course, any human law, whether promulgated by the sovereign or by custom, can be irrational and in opposition to the natural law, in which case the unjust law is no law at all and has no binding force. This is true of any and all human laws, but the laws of custom are no more or less revisable than the law of a sovereign or legislature—or the ruling of a court. Custom can be irrational and reprehensible, as can a court decision; custom can be rational and praiseworthy, as can a court decision. But it is just simply not the case that custom or tradition alone per se fails to provide a rational basis for a law. Not only might custom provide a rational basis for a law, but a good custom is a rationally binding law.
And good custom, as a rationally binding law, cannot be changed without being prejudicial to the common good. A rational custom, like any human law, should, as Aquinas concluded, “never be changed, unless in some way or other, the common weal be compensated according to the extent of the harm done.”
And there is, to put it mildly, evidence that the harms of redefining marriage cannot be compensated.