Objections to These Unions

What Friedrich Hayek can teach us about gay marriage.

Jonathan Rauch from the June 2004 issue

(Page 3 of 3)

Some people will argue that permitting same-sex marriage would be a more fundamental change than any of the earlier ones. Perhaps so; but equally possible is that we forget today just how unnatural and destabilizing and contrary to the meaning of marriage it once seemed, for example, to put the wife on a par, legally, with the husband. Anyway, even if it is true that gay marriage constitutes a more radical definitional change than earlier innovations, in an important respect it stands out as one of the narrowest of reforms. All the earlier alterations directly affected many or all married couples, whereas same-sex marriage would directly pertain to only a small minority. It isn't certain that allowing same-sex couples to marry would have any noticeable effect on heterosexual marriage at all.

True, you never know what might happen when you tinker with tradition. A catastrophe cannot be ruled out. It is worth bearing in mind, though, that predictions of disaster if open homosexuals are integrated into traditionally straight institutions have a perfect track record: They are always wrong. When openly gay couples began making homes together in suburban neighborhoods, the result was not Sodom on every street corner; when openly gay executives began turning up in corporate jobs, stud collars did not replace neckties. I vividly remember, when I lived in London in 1995, the forecasts of morale and unit cohesion crumbling if open homosexuals were allowed to serve in the British armed forces. But when integration came (under court order), the whole thing turned out to be a nonevent. Again and again, the homosexual threat turns out to be imaginary; straights have far less to fear from gay inclusion than gays do from exclusion.

Jeopardizing Marriage's Universality

So the extreme Hayekian position -- never reform anything -- is untenable. And that point was made resoundingly by no less an authority than F.A. Hayek himself. In a 1960 essay called "Why I Am Not a Conservative," he took pains to argue that his position was as far from that of reactionary traditionalists as from that of utopian rationalists. "Though there is a need for a 'brake on the vehicle of progress,'" he said, "I personally cannot be content with simply helping to apply the brake." Classical liberalism, he writes, "has never been a backward-looking doctrine." To the contrary, it recognizes, as reactionary conservatism often fails to, that change is a constant and the world cannot be stopped in its tracks.

His own liberalism, Hayek wrote, "shares with conservatism a distrust of reason to the extent that the liberal is very much aware that we do not know all the answers," but the liberal, unlike the reactionary conservative, does not imagine that simply clinging to the past or "claiming the authority of supernatural sources of knowledge" is any kind of answer. We must move ahead, but humbly and with respect for our own fallibility.

And there are times, Hayek said (in Law, Legislation, and Liberty), when what he called "grown law" requires correction by legislation. "It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust," he wrote. "But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice....Such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but of whole sections of the established system of case law."

That passage, I think, could have been written with gay marriage in mind. The old view that homosexuals were heterosexuals who needed punishment or prayer or treatment has been exposed as an error. What homosexuals need is the love of another homosexual. The ban on same-sex marriage, hallowed though it is, no longer accords with liberal justice or the meaning of marriage as it is practiced today. Something has to give. Standing still is not an option.

Hayek himself, then, was a partisan of the milder version of Hayekianism. This version is not so much a prescription as an attitude. Respect tradition. Reject utopianism. Plan for mistakes rather than for perfection. If reform is needed, look for paths that follow the terrain of custom, if possible. If someone promises to remake society on rational or supernatural or theological principles, run in the opposite direction. In sum: Move ahead, but be careful.

Good advice. But not advice, particularly, against gay marriage. Remember Hayek's admonition against dogmatic conservatism. In a shifting current, holding your course can be just as dangerous as oversteering. Conservatives, in their panic to stop same-sex marriage, jeopardize marriage's universality and ultimately its legitimacy. They are taking risks, and big ones, and unnecessary ones. The liberal tradition and the Declaration of Independence are not currents you want to set marriage against.

It is worth recalling that Burke, the patron saint of social conservatism and the scourge of the French Revolution, supported the American Revolution. He distinguished between a revolt that aimed to overthrow established rights and principles and a revolt that aimed to restore them. Many of the American founders, incidentally, made exactly the same distinction. Whatever else they may have been, they were not utopian social engineers. Whether a modern-day Burke or Jefferson would support gay marriage, I cannot begin to say; but I am confident they would, at least, have understood and carefully weighed the possibility that to preserve the liberal foundation of civil marriage, we may find it necessary to adjust its boundaries.