This September, President Clinton, who has "long opposed governmental recognition of same-gender marriages," signed "The Defense of Marriage Act," legislation designed to prevent gay marriage. The law, which passed Congress by overwhelming majorities in both houses, defines marriage in federal law as the union of a man and a woman and stipulates that, contrary to the Constitution's "full faith and credit" clause, if one state allows gay marriage, other states need not recognize the union. The impetus for this unusual display of federalism is a pending court case in Hawaii that could effectively legalize gay marriage in the Aloha State. The legislation joins 15 state-level laws and two governors' executive orders banning same-sex marriage, all passed within the past year with the similar intention of outlawing something that does not yet exist.
Meanwhile, only a few days before the president signed the federal law, another source of authority in American life effectively recognized gay marriage: IBM announced that it would extend health care and other benefits to the partners of gay and lesbian workers. Same-sex couples who want to apply for benefits will have to sign an affidavit that they are in a long-term, serious relationship and that they share the same household. Unmarried heterosexual couples will not be eligible because, says Big Blue, they can show their commitment through marriage. IBM joins a growing number of companies, including Microsoft, Walt Disney Co., American Express, and Eastman Kodak, in offering such benefits.
The timing of IBM's and the government's actions provides an opportunity to reflect on how social institutions in a relatively free society should best evolve and change over time. Adult consensual relationships--including but not limited to marriage--are a particularly good issue to work with, since they by definition are non-coercive. There is no question of involving someone who doesn't want to be involved: Individuals in a relationship are free to come and leave as they wish; for the most part, employers are not obligated to give benefits to employees, much less their partners; insurers don't have to do business with companies whose policies they disagree with. The potential involvement of children--often cited by traditionalists as a reason to oppose same-sex marriage--is a related but distinct topic (married couples do not always have children; nor are they necessarily granted the right to adopt).
F.A. Hayek defined a free society as one in which people "could at least attempt to shape their own li[ves], where [they] gained the opportunity of knowing and choosing different forms of life." Hayek emphasized that such individual empowerment is absolutely necessary to maintain an "extended order" vibrant enough to generate opportunities for its members. It is the means by which society adapts to constantly changing circumstances, needs, and desires. He also underscored that the outcomes of such a "discovery" mechanism would not always be "good" or "just," in either a moral or utilitarian sense, but that trying to "wrest control of evolution…only damages the functioning of the process itself."
While stressing that social institutions--themselves the result of an evolutionary process--cannot and should not be simply thrown out and redesigned at will, Hayek insisted that we run terrible risks when we seek to limit the choices people make. That's because the act of choosing is the very basis of a flourishing society.
IBM's decision is pretty much a textbook case of Hayekian evolution and suggests that the government's position on the matter is unlikely to hold up in the long run. Far from creating a new social institution, IBM is simply officially recognizing that it has gay employees and some of those workers are in long-term relationships that approximate heterosexual marriage. Given that, it makes sense for IBM to treat heterosexual and homosexual workers on similar terms. After all, if they don't some other company will.
"We want to be in a position to attract and retain a broad spectrum of employees" in a competitive marketplace, explained a company spokeswoman. It remain to be seen how much IBM's plan helps it compete. If experience is any guide, the impact may seem minimal, at least to outside observers. Most companies extending benefits to same-sex couples find that under 1 percent of employees enroll; Disney is being boycotted by several Christian groups for offering benefits to same-sex couples, but to negligible effect.
More important than the policy's "success," however, is the act of choice itself. IBM's experiment simultaneously ratifies individual choice and nurtures a complex web of human interactions. And, it should be stressed, only IBM is in a position to decide whether the policy is working well, needs to be tinkered with further, or should be tossed out altogether.
The Defense of Marriage Act is a slightly different kettle of fish. To be sure, it does not ban states from allowing gays and lesbians to marry. Indeed, in one sense it asks the states to become laboratories of democracy (the proliferation of state-level anti-gay marriage legislation indicates what the results are likely to be). But federal policies affect more than federal employees. They affect everyone who pays federal taxes--not just income taxes but estate taxes, for instance, which offer spouses shelters not extended even to other close relatives. And, as the president's remarks make clear, the act is designed to foreclose governmental recognition of gay marriage. It is a misguided attempt to define for all time an institution that is constantly, if slowly, evolving.
Its supporters may think they can stop social evolution in its tracks and enforce a singular vision of the good society. But such people misunderstand the very nature of a free society and its dependence on choice and change. The Defense of Marriage Act may well have put off state recognition of same-sex marriage for the time being, but such laws can do precious little to keep things as they are. There can be little doubt that, ultimately, the government will be following IBM's lead, even as IBM has followed its employees'.