The Hayekian Case for Legalizing Same-Sex Marriage

Steven Horwitz

For the Liberty Fund conference I'm the discussion leader at this weekend, one of the readings was the epilogue to volume three of Hayek's Law, Legislation, and Liberty  (also known as "The Three Sources of Human Values").  I hadn't read this in a long time, but boy did we think it was the bee's knees in grad school.  In re-reading it, it's even better than I remember and was a perfect choice for this particular LF.  One passage that struck me given my current interests is reprinted below.   It struck me because I think the question of whether one can make a Hayekian case for legalizing same-sex marriage (given the state's involvement in marriage) is a fascinating one because I can see both the pro and con arguments.  (I'm pro, but I think you can make a Hayekian case either way.)

This passage, however, fits like a glove to the way in which our understanding of marriage is changing and I think this is the best abstract argument of Hayek's one could use to make the case FOR legalizing SSM on Hayekian grounds.  From p. 167 of LLL 3, my emphasis:

It is only by recognizing the conflict between a given rule and the rest of our moral beliefs that we can justify our rejection of an established rule.  Even the success  of an innovation by a rule-breaker, and the trust of those who follow him, has to be bought by the esteem he has earned by the scrupulous observation of most of the existing rules.  To become legitimized, the new rules have to obtain the approval of society at large - not by a formal vote, but by gradually speading acceptance. 

The successive changes in morals were therefore not a moral decline, even though they offended inherited sentiments, but a necessary condition to the rise of the open society of free men. 

I think the argument from equality under the law fits the first sentence perfectly.  For many today, especially the young, the rule that marriage is only man-woman conflicts with other moral beliefs about love, marital choice, and their tolerance/acceptance of homosexuality.  And those gays and lesbians who are pushing for same-sex marriage are great examples of the second sentence, as they want to be a part of the existing rules in the sense that they think marriage is great and they want "in" to that institution.  It is precisely because same-sex couples have become part of the furniture of the lives of so many heterosexuals by living wonderfully bourgeois lives that homosexuality has become normalized and that normalization and their bourgeois lives are the best evidence of their "scrupulous" observation of the general rules of marriage.  By acting married, they show their fealty to the broader rules, even as they challenge one of them. Finally, it seems clear that "gradually spreading acceptance" of same-sex couples, including same-sex parenting, has already taken place and is ahead of both the law and any formal votes.

I included the last sentence because it so perfectly captures generations of changes to the Western family.  Every time the family has changed, the defenders of "inherited sentiments" said disaster was upon us and they were wrong.  Those changes, like SSM, took place in largely the way Hayek describes in the longer extract above.

This passage from Hayek is a really good example of how his treatment of tradition is more "respect" than "reverence," despite what his conservative defenders would like to believe.  I think this passage  gets it just right and makes for a nice Hayekian justification for legalizing same-sex marriage.

 

Comments

[bluez]

(I realized my previous post had been truncated, so I've tried to patch it up - apologies)

I believe that the same-sex marriage debate, at its core, is (i) what constitutes morality; (ii) the family structure. I will also comment on what I think are possible links between this issue and economics in part (iii)

On point (i):

What constitutes morality?

In the past, the moral code for Western civilization was furnished by Christianity. In contrast, Chinese civilization derived its moral perspective from Confucianism. Both the Christian and Confucian perspectives led to (i) a moral code; (ii) emphasis on family - though there are differences between them of course, and these differences are significant.

The problem with Western society today (which if I recall correctly, Wilhelm Ropke once pointed out) is that the West has been uprooted from its Christian roots, but so far there has yet to be a replacement for it.

ure, multiculturalism, secularism, the "don't-harm-others" principles are sometimes touted - but they are insufficient in generating a coherent set of values. Not to mention that some of these precepts are internally contradictory - take multiculturalism for instance, which argues that all cultures/religions are of equal veracity, equal worth, or at least equally compatible in that they can all live alongside one another. That is clearly not true.

I believe in some ways that Islamic extremism exploits the internal contradictions of these modern precepts. They are some who exercise their rights to freedom of religion by adopting a creed which encourages murder. To a lesser extent, there are issues like halal meat and Sharia law - if more than 50% of the populace wants it, in a democracy it is given approval.

How do we judge what is right or wrong? Is it something to be decided by 50% of the populace? But in that case it is but mob's rule.

If morality were to be subjective - then by what standards can we judge something to be right or wrong? For instance, if my personal moral code claims that adultery and stealing are morally commendable, and I try to express these beliefs through my actions - it can only be properly said that I am condemned by society not because I am wrong, but because my personal beliefs conflicts with society's prevailing ideas of the day. Subjectively I am doing what is right according to my own beliefs, and subjectively I am condemned by society only because of their subjective perspectives. On no proper grounds can I be 'objectively' and rightfully condemned. It can be clearly seen that this also has implications for freedom of expression and freedom of belief.

If we are to derive our ideas of morality from observations of the animal kingdom - well, murder, homicide, and genocide are daily occurrences among warring tribes of animals. If homosexuality is morally legitimized on such grounds, then to be consistent in our approach both homicide and genocide must be considered morally okay too. Incest is actually common among rodents too.

But I think the modern moral creed is do whatever you want, whenever and wherever it pleases you - so long as you don't get caught and thrown into jail.

On point (ii):

Most religious adherents are not clamouring for homosexual activities to be snooped out and to be outlawed. They are not advocating intrusion into personal sexual behaviour. But what is at stake is that by legitimatizing same-sex marriage, it fundamentally changes the definition of marriage - which has always meant a union between a man and a woman, across all societies.

What IS the definition of a marriage? I believe this is the crux of the issue, and discussion is not possible without it.

If the only condition for marriage is love - well, what is stopping me from marrying my mother or marrying a kid so long as it is voluntary by both parties? Boris Johnson once pointed out - why not have marriages between three men, or even three men and a dog?

The Darwinian perspective is that the family structure so happened be a social structure which has enabled humanity to survive thousands of years. However, the social structure could have been different - a biology friend pointed out that Boris Johnson was indeed correct in some sense, it could've been three men, three men and a dog. There is nothing 'sacrosanct' about the family structure. As an aside, he also said he had social-engineering ideas of his own - how humanity could organized itself better.

I pointed out to my friend that any social structure which has enabled humanity to survive millenia should not be tinkered with too hastily. It would be appropriate for any proposed change to the family structure to be tested over a similar thousand-year time-frame.

The concept of family has been heavily whittled down in the West - so I view the development of same-sex marriage to be another step of this trend. It is not that single-parents are less deserving of dignity - they have equal worth and equal dignity as any other individual, but it is very different to claim that such a social arrangement is of equal efficacy (especially when it comes to the upbringing of children) as a traditional daddy-and-mommy family.

Never has there been a time in human history where family has been de-emphasized to such an extent as today. Take the Roman-Greco period - family still received some emphasis, because it was linked to inheritance and progeny matters. It would have been difficult for them to view a same-sex relationship as a marriage - as a same-sex union could not produce kids and propagate your lineage. But technological advancements have allowed us to dispense with many such considerations - a homosexual couple today can have kids in some sense. I believe this to partly contribute to the agitation of same-sex unions elevated to marriage status - because many of the supposed "disadvantages" or "incapabilities" of same-sex couples... these natural barriers can now be removed via technological means.

Just like single-parent families, it is not clear that the family of a homosexual-couple is of the same efficacy as a traditional marriage between a man and a woman - especially in the raising of children. By claiming that a same-sex couple is a marriage subtly implies that there is no essential difference between the family which they form and a traditional family. I am not sure if there has been research done on this, but intuitively I think it is unlikely to be true.

Both the word, and concept, of marriage is being redefined - to something it has never been. This new definition will be imposed via legal means on all society - and would conflict with those who prefer to hold on to the traditional definition of marriage. If you want to change the traditional definition of a word, the most democratic way to go about it is to have a vote. If more than 50% of the people concur with changing the definition - at least everyone is content in having their say. What I oppose is having a new definition being subtly introduced and insidiously imposed on society.

I am a Chinese - we do not have a conscious memory of our history or culture (unlike the British, for instance). It is a subconscious one - with Chinese values including the emphasis on hard work and family being passed down from generation to generation. These values were forged and tested through 5000 years of civilization.

The Chinese people had always lived as if we had no "rights", certainly no right to welfare. Good times, bad times - but there's family, which Lee Kuan Yew once described as a "survival raft" for the individual and with which we pull through somehow.

The Chinese emphasis on family is proved by experience, and has enabled our civilization to endure for thousands of years - through inflations, deflations, depressions, civil war, imperial invasion, dynastic downfall, cultural revolution, etc. We should not be too hasty in abandoning it.

On point (iii):

I believe there's a very intimate connection between the same-sex marriage debate and economics per se. People like Wilhelm Ropke and Goh Keng Swee understood that the market economy could not function on its own - you can design the best economic policies, the best political institutions, but it would not work (c.f. some experiences of African countries). They believed that the market economy could only function if there was a strong sense of morals among individuals, further supported by institutions especially the family structure.

For them, it was also the family which illuminated life. What illuminates life is not material goods (demand and supply stuff) - that is material wealth, which is not unimportant in itself. But real wealth, the things which illuminate life, is our relationship with others - with friends, with family... and for the Christian, above all is his relationship with God.

What would Hayek say?

It is difficult to say as his views evolved over time. Towards the latter part of his life (after he wrote the "Why I am not a Conservative" essay), he claimed to increasingly identify with Edmund Burke - perhaps Hayek was aware of the internal contradictions of his ideas, especially pertaining to morality as I pointed out in part (i), and some other problems suggested by K Sralla. Perhaps Hayek was aware that it was difficult to salvage a proper notion of morality.

So the Hayek who wrote "Why I am not a Conservative" might have agreed to same-sex marriage. But Hayek the Burkean Whig, like Burke himself, would almost certainly say no to same-sex marriage.

[Che20]

@bluez:

"the definition of marriage - which has always meant a union between a man and a woman, across all societies."

This is quite an assumption, especially with the "always/all" qualifier in it.

Do you have proof that there has never been a society where marriage has not been so defined?

Note that this can either mean that marriage was simply not defined, or that it was defined differently.