Vermont's Government Catches Up With Vermont's Citizens

Jesse Walker | April 7, 2009

With the Vermont legislature -- not the courts, the legislature -- legalizing same-sex marriage today, it grows even harder to sustain the argument that such unions are being imposed by social engineers and activist judges. In the words of ... um, me:

Marriage isn't being re-engineered. It is evolving in an impeccably Hayekian fashion, as folkways appear on the ground and are gradually ratified by imitation, then market acknowledgement, and then, only lastly, by the law. For eons, same-sex couples have quietly lived as though they were married. As social mores changed and gays came out of the closet, so did those longtime-companion relationships. Before long, lovers were holding their own marriage ceremonies, which were not recognized by the government or (at first) by any established church but did carry weight with family, friends, and neighbors. Couples started to draw up marriage-like contracts, in an effort to establish rights privately that they couldn't acquire publicly. Businesses had to decide whether to extend benefits to gay spouses; with time, more and more did.

All this happened without legislators or judges taking the lead. It happened because a certain number of gay people wanted to live as married, then slowly established institutions that allowed them to do so. Legalizing gay unions—I don't really care if the government calls them "marriages," because what's important is what everyday people call them—doesn't rearrange a core social institution. It recognizes a rearrangement that is already taking place.

The government of Vermont now acknowledges an institution that ordinary Vermonters have recognized for ages. Welcome to the club, guys.

Comments

Alan Vanneman|4.7.09 @ 5:05PM|#

Yes, somewhere, those eminent Hayekians J. Edgar Hoover and Clyde Tolson are smiling.

The Angry Optimist|4.7.09 @ 5:07PM|#

yay Vermont. But "ages" is a stretch, isn't it?

|4.7.09 @ 5:16PM|#

Good news. Face it defense of marriage bozos, you are losing. Utah, just like Mississippi with race, will be last.

SpongePaul|4.7.09 @ 5:19PM|#

actually marrige between a man and a woman is a christian/muslim concept. It is religiously based. If you were in india you could marry a dog, a goat, or whatever else. and in india dogs marry dogs and everything else. what is at stake here is a tax benifit bestowed upon thoose who decide to live together (marry in christian terms) so i say since it is a religious thing, not a goverment thing. then the goverment has no say in who can marry or not. personally i think the tax breaks should go to single people, since we have no hellspawn to suck up the tax dollars. and we use much less tax dollars than a married couple.

|4.7.09 @ 5:22PM|#

TAO, no amount of stretching the facts to fit the narrative is too much when it serves the cause of gay marriage. Or so my betters seem to believe.

it grows even harder to sustain the argument that such unions are being imposed by social engineers and activist judges.

That would imply that it was hard to, well, argue the plain and simple truth before this happened. Isn't VT the first state to institute gay marriage via a free act of the legislature (ie, not one commanded by the courts)? Even after this the majority of states where gay marriage is legal have that status because of a court decision.

Also note that the same logic Mr. Walker uses here could be used to say that TARP and the GM/Chrysler bailouts represent the will of the people.

|4.7.09 @ 5:25PM|#

actually marrige between a man and a woman is a christian/muslim concept.

Bullshit. Virtually every human society in history has considered marriage to be a relationship between a man and a woman. The fact that in some societies this relationship was non-exclusive (ie, a man could be married to more than one woman) represents a minor difference compared to viewing marriage as a relationship between people of random gender.

SpongePaul|4.7.09 @ 5:29PM|#

ok crimethink i give you that the buddists, and the arabs modles are different than the norm. but the man/oman exclusitvity is new. when in rome eh! the greeks! it is the religious concept that mandates man/woman. without religion it is a civil union between to willing partners, as it should be. I am advocating the banishment of religion from the goverment. as it should be, not as it is sadly

SpongePaul|4.7.09 @ 5:30PM|#

and yes i am oversimplifing something that i can never explain in a blog

short, fat bastard|4.7.09 @ 5:33PM|#

Virtually every human society in history has considered marriage to be a relationship between a man and a woman.

Marriage has always been a vehicle for the consolidation of wealth and for defining inheritance rights.

In the past, the only way to produce an heir was for a man to impregnate a women through intimate contact. Marriage helped to limit which offspring could be heirs (gotta exclude all those bastard children).

Modern medicine has eliminated the need for heterosexual sex to produce heirs. So that is no longer a driving concern for defining a legal definition of marriage.

In addition, marriage defines a boatload of rights and responsibilites between the two adults that form a union. Gender has never been particularly relevant to those rights and responsibilities.

Marriage is dead, long live marriage.

|4.7.09 @ 5:33PM|#

"You don't wanna beat me or screw me?!? What kind of marriage is this? Bring a book."

Taktix®|4.7.09 @ 5:36PM|#

Virtually every human society in history has considered marriage to be a relationship between a man and a woman.

And virtually every human society in history believed that their rules was absolute and apponted by their god or gods. Shall we carry on that tradition as well?

Taktix®|4.7.09 @ 5:37PM|#

That should be "ruler was absolute"

When are they going to add a damn "preview" button?

|4.7.09 @ 5:47PM|#

actually marrige between a man and a woman is a christian/muslim concept

Got any reliable references for that? Because last time I checked, everyone from the Polynesians to the Inuits had men marrying women. The only exceptions I can find are variations on contraries. Yes there were homosexuals, and in many cases they were accepted as normal, but actual outright (non-contrary) gay marriage was non-existant.

Of course, I am not a historian. I may be unaware of some examples of gay marriage in history. But your assertion that heterosexual marriage is a "christian/muslim concept" is absurd.

|4.7.09 @ 6:22PM|#

Personally, I would take those religious variations (if they exist) as a grounds for government to get out of the marriage business entirely, as siding one way or another could interfere with the lawful practice of religion under the First Amendment.

Not to mention, some Christian denominations have expressed interest in performing same-sex marriages if legal; why not give them the opportunity to, and anyone who wants that sort of thing to go to those churches? Getting government involved seems to be as much of an issue as the theology, and probably more so.

Muttley|4.7.09 @ 6:23PM|#

the sanctity of marriage between a man and a woman is a christian/muslim concept.

there, fixed

Jesse Walker|4.7.09 @ 7:01PM|#

Also note that the same logic Mr. Walker uses here could be used to say that TARP and the GM/Chrysler bailouts represent the will of the people.

Really? TARP and the GM/Chrysler bailouts appeared on the ground and were gradually ratified by imitation, then market acknowledgement, and then, only lastly, by the law? That's not the way I remember it.

robc|4.7.09 @ 7:12PM|#

Before long, lovers were holding their own marriage ceremonies, which were not recognized by the government or (at first) by any established church but did carry weight with family, friends, and neighbors. Couples started to draw up marriage-like contracts, in an effort to establish rights privately that they couldn't acquire publicly.

Hey gays, you are screwing it up. You had it right and instead of following the straights down the government license path you should have been convincing them to do it your way.

Morons.

shecky|4.7.09 @ 7:17PM|#

Gay marriage opponents had been relying on a philosophical angle way too much, that "judicial activism" is the wrong way to make all these progressive issues legit (not that there's anything wrong with it!). But clearly, it was a tactic that at best was only good for assuaging the repulsion these folks feel about homosexuality. On the merits, the arguments against same sex marriage were pitifully weak. Now it's appearing they can't even fall back on the old bogeyman of judicial activism.

|4.7.09 @ 7:21PM|#

Jesse Walker,

I was referring to your assertion that the VT legislature passing this edict is a sign of this not being foisted on an unwilling public.

I wonder if you feel the same way about California's gay marriage ban, which was, you know, started entirely outside the political process and approved by a majority of voters rather than the legislature. Oh, but that can't possibly reflect the true will of the people, because it goes against the narrative.

Xeones|4.7.09 @ 7:25PM|#

In the words of ... um, me:

Who does Jesse think he is, Ward Churchill?

|4.7.09 @ 7:25PM|#

On the merits, the arguments against same sex marriage were pitifully weak.

No weaker than the arguments for it, which seem to require the conflation of individual rights with "couple's rights" (but apparently the exclusion of rights for any group larger than two). That and throwing the word "equality" around in situations where it's not entirely clear what it means.

But it pisses off religious conservatives, which in many libertarians' eyes covers a multitude of logical sins (just like federal funding of embryonic stem cell research).

Jesse Walker|4.7.09 @ 7:47PM|#

I was referring to your assertion that the VT legislature passing this edict is a sign of this not being foisted on an unwilling public.

In other words, you ignored the argument I did make and responded to one I didn't make.

|4.7.09 @ 7:47PM|#

California's gay marriage ban, which was, you know, started entirely outside the political process...

The mayor of a major city setting marriage policy is outside of the political process? Huh? This was ALL political, from the start. The more cynical might even suspect the left of using the issue to keep gays over in their corner.

Jesse Walker|4.7.09 @ 7:51PM|#

The mayor of a major city setting marriage policy is outside of the political process? Huh?

Yeah -- that comparison makes even less sense than the TARP comparison, if that's possible.

|4.7.09 @ 7:51PM|#

A Tale of Two H&R Headlines:

Backwards into the Future: California's Anti-Gay Marriage Proposition Apparently Passes; and Arizona's and Florida's Too

Posted on November 5, 2008, 7:35am | Nick Gillespie

Vermont's Government Catches Up With Vermont's Citizens

Jesse Walker | April 7, 2009, 4:55pm

Both involve a major change to the state's marriage laws, in the first case approved directly by voters, in the second case through the questionable filter of the state legislature. Yet Reason's staff felt they deserved titles of very different tones. Hmm. Maybe someone can explain why this happened.

|4.7.09 @ 7:54PM|#

Jesse, you did indeed argue that the legislature's action goes against the idea this is being forced on us from above. Or did someone ghostwrite this for you:

With the Vermont legislature -- not the courts, the legislature -- legalizing same-sex marriage today, it grows even harder to sustain the argument that such unions are being imposed by social engineers and activist judges.

Cause you seem to be running from it faster than a survivalist newsletter.

Jesse Walker|4.7.09 @ 7:58PM|#

Both involve a major change to the state's marriage laws, in the first case approved directly by voters, in the second case through the questionable filter of the state legislature. Yet Reason's staff felt they deserved titles of very different tones. Hmm. Maybe someone can explain why this happened.

Because "Reason's staff" approves of one result and disapproves of another? This ain't rocket science, Crimethink.

(Not that "Reason's staff" gets together and composes our headlines en masse. Nick wrote his headline, and I wrote mine.)

|4.7.09 @ 7:58PM|#

The mayor of a major city setting marriage policy is outside of the political process?

Perhaps "political process" was the wrong phrase to use. It started and was fulfilled outside the normal legislative sausage making process...I don't know if there's a handy phrase for that.

You have to admit that a referendum result reflects the will of the people more than a state legislature vote, right?

|4.7.09 @ 8:02PM|#

Because "Reason's staff" approves of one result and disapproves of another? This ain't rocket science, Crimethink.

Oh, I thought of that possibility, but I dared not think my heroes at Reason would distort the facts to fit their personal opinions.

Jesse Walker|4.7.09 @ 8:07PM|#

Jesse, you did indeed argue that the legislature's action goes against the idea this is being forced on us from above.

I wrote that it goes against the idea that this is all the work of activist judges, which is obviously true. And I wrote that it was part of a longer process in which gay marriage emerged from the bottom up rather than being invented by social engineers. Here -- I'll post the passage one more time:

Marriage isn't being re-engineered. It is evolving in an impeccably Hayekian fashion, as folkways appear on the ground and are gradually ratified by imitation, then market acknowledgement, and then, only lastly, by the law. For eons, same-sex couples have quietly lived as though they were married. As social mores changed and gays came out of the closet, so did those longtime-companion relationships. Before long, lovers were holding their own marriage ceremonies, which were not recognized by the government or (at first) by any established church but did carry weight with family, friends, and neighbors. Couples started to draw up marriage-like contracts, in an effort to establish rights privately that they couldn't acquire publicly. Businesses had to decide whether to extend benefits to gay spouses; with time, more and more did.

All this happened without legislators or judges taking the lead. It happened because a certain number of gay people wanted to live as married, then slowly established institutions that allowed them to do so. Legalizing gay unions-I don't really care if the government calls them "marriages," because what's important is what everyday people call them-doesn't rearrange a core social institution. It recognizes a rearrangement that is already taking place

We're not all the way through the last part of the process, in which the grassroots folkways are ratified by the law, but the fact that elected representatives (as opposed to judges) are now starting to fall in line marks another step in that direction. So does the fact that the anti-marriage referenda you're going on about have been passing by narrower and narrower margins each cycle.

None of the argument has anything to do with the "true will of the people." I'm an individualist; I don't believe a collective "will" even exists.

duderman|4.7.09 @ 8:11PM|#

"Chuck, you must have a lot of fun with your wife."
"Yeah, it's a reeeal CHUCKLEFEST."

MikeMangum|4.7.09 @ 8:17PM|#

CrimeThink - "I was referring to your assertion that the VT legislature passing this edict is a sign of this not being foisted on an unwilling public."

Jesse Walker - "In other words, you ignored the argument I did make and responded to one I didn't make."

From the blog post:

"it grows even harder to sustain the argument that such unions are being imposed by social engineers and activist judges."

We are speaking English, right?

It isn't particularly important to me whether gays are or are not allowed to marry, since either way they are not being denied a right (I'm waiting for someone to explain to me how my rights are being violated because I'm not eligible for Social Security benefits). It does matter to me whether they are allowed or disallowed based on the democratic process or judicial fiat. Good for Vermont. And good for California. Both are examples of states deciding the issue democratically.

Jesse Walker|4.7.09 @ 8:53PM|#

We are speaking English, right?

Sometimes I wonder.

<i>REASON</i> Comenter|4.7.09 @ 9:28PM|#

In other words, you ignored the argument I did make and responded to one I didn't make.

So? Are you new here?

hotsauce|4.7.09 @ 10:38PM|#

With the Vermont legislature -- not the courts, the legislature -- legalizing same-sex marriage today, it grows even harder to sustain the argument that such unions are being imposed by social engineers and activist judges.

I'll give you activist judges, but only barely. It's marginally -- marginally -- harder to make that argument now, but the majority (I believe) of states to adopt SSM have done so via the courts. For now, Vermont is an outlier. I say this as someone who's generally thinks this is good news, though the best approach would be to keep government out of the marriage business altogther. In short, your argument is pretty thin gruel.

Kunal|4.7.09 @ 11:56PM|#

If you were in india you could marry a dog, a goat, or whatever else. and in india dogs marry dogs and everything else.

I object most strenuously to that characterisation! In India, sir, we marry trees. We have not legalised gay marriage, so clearly man-on-dong is not yet possible.

Also, did you know some Catholic chicks marry a dead guy naled to some pieces of wood thousands of years ago? Strange but true.

Kunal|4.7.09 @ 11:57PM|#

so clearly man-on-dong

I meant Man-on-dog. Clearly some Freudian shit going on there.

|4.8.09 @ 9:43AM|#

Just don't understand why this is still an issue.

Art-P.O.G.|4.8.09 @ 9:48AM|#

Kunal, that typo was perfect.

dhex|4.8.09 @ 10:05AM|#

"Just don't understand why this is still an issue."

because they're gay and it's icky.

|4.8.09 @ 11:06AM|#

With the Vermont legislature -- not the courts, the legislature -- legalizing same-sex marriage today, it grows even harder to sustain the argument that such unions are being imposed by social engineers and activist judges.

You certainly can't make that argument in Vermont. In states where gay marriage has been legalized over the stated objections of the electorate or the legislature, not so much.

It is evolving in an impeccably Hayekian fashion, as folkways appear on the ground and are gradually ratified by imitation, then market acknowledgement, and then, only lastly, by the law.

Hmm. Not sure what the folkway on the ground is for gay marriage. To my knowledge, gay partners have not taken advantage in any great numbers of the opportunity to emulate the major points of marriage via contract. Neither has the market predominantly provided "partner" benefits. Of course, this is all impressionistic on my part (and on the part of the authors of the article); data would always be welcome.

I think the "imitation" step is missing here, although perhaps because there really isn't any way to imitate gay marriage.

So, I'm also not sure that what's going on here really is final ratification by the law. Marriage is, for better or worse, a fundamentally legal relationship in our culture. The push for gay marriage started at this last step, without, I don't think, going through the gradualist process described by Hayek.

Kunal gets the RC'z Law award of the morning, of course.

Vermont Gun Owner|4.8.09 @ 3:12PM|#

At least now I shouldn't have to hear about the damn bill every other step I take on campus.