WWHAYEKD?: Jonathan Rauch

There are only two objections to same-sex marriage that are intellectually honest and internally consistent. One is the simple anti-gay position: "It is the law's job to stigmatize and disadvantage homosexuals, and the marriage ban is a means to that end." The other is the argument from tradition -- which turns out, on inspection, not to be so simple. ...

It was on this point that [Friedrich] Hayek was particularly outspoken: Intellectuals and visionaries who seek to deconstruct and rationally rebuild social traditions will produce not a better order but chaos. In his 1952 book The Counter-Revolution of Science: Studies in the Abuse of Reason, Hayek made a statement that demands to be quoted in full and read at least twice:

"It may indeed prove to be far the most difficult and not the least important task for human reason rationally to comprehend its own limitations. It is essential for the growth of reason that as individuals we should bow to forces and obey principles which we cannot hope fully to understand, yet on which the advance and even the preservation of civilization depends. Historically this has been achieved by the influence of the various religious creeds and by traditions and superstitions which made man submit to those forces by an appeal to his emotions rather than to his reason. The most dangerous stage in the growth of civilization may well be that in which man has come to regard all these beliefs as superstitions and refuses to accept or to submit to anything which he does not rationally understand. The rationalist whose reason is not sufficient to teach him those limitations of the powers of conscious reason, and who despises all the institutions and customs which have not been consciously designed, would thus become the destroyer of the civilization built upon them. This may well prove a hurdle which man will repeatedly reach, only to be thrown back into barbarism." ...

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. ...

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. ...

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. ...

...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.

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posted by Eve at 12:19 AM | link

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