Objections to These Unions

What Friedrich Hayek can teach us about gay marriage.

Jonathan Rauch from the June 2004 issue

(Page 2 of 3)

Not long ago I had dinner with a friend who is a devout Christian. He has a heart of gold, knows and likes gay people, and has warmed to the idea of civil unions. But when I asked him about gay marriage, he replied with a firm no. I asked if he imagined there was anything I could say that might budge him. He thought for a moment and then said no again. Why? Because, he said, male-female marriage is a sacrament from God. It predates the Constitution and every other law of man. We could not, in that sense, change it even if we wanted to. I asked if it might alter his conclusion to reflect that legal marriage is a secular institution, that the separation of church and state requires us to distinguish God's law from civil law, and that we must refrain from using law to impose one group's religious precepts on the rest of society. He shook his head. No, he said. This is bigger than that.

I felt he had not answered my argument. His God is not mine, and in a secular country, law can and should be influenced by religious teachings but must not enforce them. Yet in a deeper way, it was I who had not answered his argument. No doubt the government has the right to set the law of marriage without kowtowing to, say, the Vatican. But that does not make it wise for the government to disregard the centuries of tradition -- of accumulated social knowledge -- that the teachings of the world's great religions embody. None of those religions sanctions same-sex marriage.

My friend understood the church-state distinction perfectly well. He was saying there are traditions and traditions. Male-female marriage is one of the most hallowed. Whether you call it a sacrament from God or part of Western civilization's cultural DNA, you are saying essentially the same thing: that for many people a same-sex union, whatever else it may be, can never be a marriage, and that no judge or legislature can change this fact.

Here the advocates of same-sex marriage face peril coming from two directions. On the one side, the Hayekian argument warns of unintended and perhaps grave social consequences if, thinking we're smarter than our customs, we decide to rearrange the core elements of marriage. The current rules for marriage may not be the best ones, and they may even be unfair. But they are all we have, and you cannot re-engineer the formula without causing unforeseen results, possibly including the implosion of the institution itself. On the other side, political realism warns that we could do serious damage to the legitimacy of marital law if we rewrote it with disregard for what a large share of Americans recognize as marriage.

If some state passed a law allowing you to marry a Volkswagen, the result would be to make a joke of the law. Certainly legal gay marriage would not seem so silly, but people who found it offensive or illegitimate might just ignore it or, in effect, boycott it. Civil and social marriage would fall out of step. That might not be the end of the world -- the vast majority of marriages would be just as they were before -- but it could not do marriage or the law any good either. In such an environment, same-sex marriage would offer little beyond legal arrangements that could be provided just as well through civil unions, and it would come at a price in diminished respect for the law.

Call those, then, the problem of unintended consequences and the problem of legitimacy. They are the toughest problems same-sex marriage has to contend with. But they are not intractable.

The Decoy of Traditional Marriage

The Hayekian position really comes in two quite different versions, one much more sweeping than the other. In its strong version, the Hayekian argument implies that no reforms of longstanding institutions or customs should ever be undertaken, because any legal or political meddling would interfere with the natural evolution of social mores. One would thus have had to say, a century and a half ago, that slavery should not be abolished, because it was customary in almost all human societies. More recently, one would have had to say that the federal government was wrong to step in and end racial segregation instead of letting it evolve at its own pace.

Obviously, neither Hayek nor any reputable follower of his would defend every cultural practice simply on the grounds that it must exist for a reason. Hayekians would point out that slavery violated a fundamental tenet of justice and was intolerably cruel. In calling for slavery's abolition, they would do what they must do to be human: They would establish a moral standpoint from which to judge social rules and reforms. They thus would acknowledge that sometimes society must make changes in the name of fairness or decency, even if there are bound to be hidden costs.

If the ban on same-sex marriage were only mildly unfair or if the costs of lifting it were certain to be catastrophic, then the ban could stand on Hayekian grounds. But if there is any social policy today that has a claim to being scaldingly inhumane, it is the ban on gay marriage. Marriage, after all, is the most fundamental institution of society and, for most people, an indispensable element of the pursuit of happiness. For the same reason that tinkering with marriage should not be undertaken lightly (marriage is important to personal and social well-being), barring a whole class of people from marrying imposes an extraordinary deprivation. Not so long ago, it was illegal in certain parts of the United States for blacks to marry whites; no one would call this a trivial disfranchisement. For many years, the champions of women's suffrage were patted on the head and told, "Your rallies and petitions are all very charming, but you don't really need to vote, do you?" It didn't wash. The strong Hayekian argument has traction only against a weak moral claim.

To rule out a moral and emotional claim as powerful as the right to marry for love, saying that bad things might happen is not enough. Bad things always might happen. People predicted that bad things would happen if contraception became legal and widespread, and indeed bad things did happen, but that did not make legalizing contraception the wrong thing to do; and, in any case, good things happened too. Unintended consequences can also be positive, after all.

Besides, by now the traditional understanding of marriage, however you define it, has been tampered with in all kinds of ways, some of them more consequential than gay marriage is likely to be. No-fault divorce dealt a severe blow to "till death do us part," which was certainly an essential element of the traditional meaning of marriage.

It is hard to think of a bigger affront to tradition than allowing married women to own property independently of their husbands. In What Is Marriage For?, her history of marriage, the journalist E.J. Graff quotes a 19th-century New York legislator as saying that allowing wives to own property would affront both God and nature, "degrading the holy bonds of matrimony [and] striking at the root of those divinely ordained principles upon which is built the superstructure of our society." In 1844 a New York legislative committee said that permitting married women to control their own property would lead to "infidelity in the marriage bed, a high rate of divorce, and increased female criminality" and would turn marriage "from its high and holy purpose" into something arranged for "convenience and sensuality." A British parliamentarian denounced the proposal as "contrary not only to the law of England but to the law of God."

Graff assembles other quotations in the same vein, and goes on to add, wryly, "The funny thing, of course, is that those jeremiads were right." Allowing married women to control their economic destinies did indeed open the door to today's high divorce rates; but it also transformed marriage into something less like servitude for women and more in keeping with liberal principles of equality in personhood and citizenship.

An off-the-cuff list of fundamental changes to marriage would include not only divorce and property reform but also the abolition of polygamy, the fading of dowries, the abolition of childhood betrothals, the elimination of parents' right to choose mates for their children or to veto their children's choices, the legalization of interracial marriage, the legalization of contraception, the criminalization of marital rape (an offense that wasn't even recognized until recently), and of course the very concept of civil marriage. Surely it is unfair to say that marriage may be reformed for the sake of anyone and everyone except homosexuals, who must respect the dictates of tradition.