August 20, 2004,
AUTHOR'S NOTE: I'm on San Juan Island in Washington State, ostensibly on a family vacation. It's August; I'm way, way behind on my book; and my internet access is as feeble as my access to newspapers is limited. So, I thought I'd write what some in the business call an "evergreen" and what others call a "thumbsucker." If that's not your bag, baby, so be it. But here's the thing: I'd rather you not read it than wade through it and then complain that I wasted your time with all of this stuff about Hayek and gay marriage.
But let me explain.
Liberal doctrine to the extent such a thing exists holds that laws that cannot be justified by reason are inherently bigoted. Fair enough, I say. This is actually a venerable conservative position, to the extent that it was one of the greatest evils in Edmund Burke's mind: the arbitrary use of power. Force and discrimination (rightly understood) governed by reason and anchored by moral law are the necessary, conservative pillars of a good society. But the arbitrary abuse of power is man's shoddy attempt to mimic the will of God. The difference is that the will of God is not arbitrary but mysterious, and beyond our ability to comprehend. It only seems arbitrary to some because we cannot always tell the difference.
Anyway, liberals argue in good faith that bans on gay marriage are inherently arbitrary and, hence, bigoted. Whatever other faults this argument may have, the liberal position seems to fall apart, in my mind, when it comes to marriage between, for example, lesbian sisters. Or brothers and sisters who are incapable of reproducing. Or fathers and sons, or fathers and adopted children of either sex. Indeed, they're all gay marriages as far as first principles go, right?
To which the liberal usually responds, "Well, no one is asking for incestuous marriage, so it's a red herring to even bring it up."
In other words, it is by virtue of the fact that gay people are asking for marriage rights that it is unjust to deny them these rights. If they didn't want such rights, there would be no injustice.
And again: Homosexual-marriage proponents respond by saying, "Nobody's asking for tripartite or polygamous marriages! So this is just a red herring!" Of course this isn't entirely true, but even if it were, doesn't that prove the point? It is because nobody's asking for multi-party marriages that we aren't now having an argument about whether we should have them.
If a million or so affluent, culturally influential citizens were clamoring from New York, Washington, and Hollywood to make rugby teams into marriages, we'd be having an argument about that. Such is the success of populism in our political culture: Virtually any accommodation demanded by large numbers of people is presumed to have merit, particularly if those doing the clamoring are prized members of the Coalition of the Oppressed.
Most of the arguments in favor of gay marriage seem to be reducible to this basic problem. And I wouldn't mind it so much if proponents of gay marriage didn't deny it. They claim they are arguing from first principles, and so therefore democracy has nothing to do with it. "Individual rights," "justice," "freedom," and such are the words and principles used to advocate a brand-new definition of marriage; the suggestion that the push for gay marriage is really a form of leftist or libertine populism offends them greatly, if it occurs to them at all. Many on the right probably don't like this analysis either, because they very much like the idea that elitist pointy-headed intellectuals and runaway judges are trying to rewrite the fabric of Western Civilization's bedrock institution according to their own arbitrary whims. But the inconvenient fact is that the pro-gay-marriage crowd also believes that powerful forces are denying, for arbitrary reasons, a right properly reserved by the people.
Which brings me to my second problem with gay marriage.
RED LIGHT, GREEN LIGHT, 1, 2, 3But first, let's take a break from gay marriage for moment and talk about traffic lights instead.
Today we have red, yellow, and green traffic lights. Pretty much everyone knows what they mean. I haven't bothered to look up the reason why we use those colors or why those colors have the meanings they do. But that's the point. Our society, indeed global society, has settled on the use of red, yellow, and green traffic lights. For all I know, the original rationale for using these colors was entirely arbitrary. Or maybe it began and ended with the fact that "green" and "go" both begin with "G." Who knows? Who cares? The entire planet now uses this system to direct traffic. That traffic, in turn, is a major part of the circulatory system of the global economy and life on this planet. Everything from the bulk of commerce and commuting to shopping errands and soccer-practice drop-offs depend on this system. So even if the RGY system of traffic lights was founded on the most arbitrary or absurd reason in the world, the fact is that we depend on it now.
Now imagine that a couple million people with specific colorblindness mounted a campaign to change the colors. And imagine if society agreed.
So, let's say we declared that red stood for both "stop" and "go," and you had to figure out whether to advance at an intersection by the position of the red light: Top red light is "stop," bottom red light is "go," etc. Or imagine that we declared that certain people would be grandfathered into the old system but everyone under 30 would be required to follow the new system. Imagine whatever system you want, even imagine a brilliant system we cannot imagine.
Now, imagine the unavoidable chaos and upheaval this would cause.
This example is not the best illustration of what I'm getting at, but it has certain advantages. For now it's important to keep in mind that most drivers do not rationally compute "Ah. A red light, that indicates stop." They have a habitual, almost Pavlovian, response. Moreover, they trust that other people have the same knee-jerk response to red traffic lights. Were we to replace that system, not only would we be unsure of our own responses, we would be doubly insecure over whether the guy speeding toward the intersection would come to a stop. This is one of the reasons so many traffic accidents occur in mall and supermarket parking lots: The rules are less definite and more dependent on "common courtesy," a system in which each individual is allowed to make up the rules just a little bit. The reason this is dangerous is that each driver gets caught in the "No, you go!" stop-and-start game because both are trying to imagine the other's responses and intentions. In other words, even if you learned the new rules cold, you couldn't be confident the other guy on the road did. This is why Hayek said judges should adhere to the principle that "the only public good with which he can be concerned is the observance of those rules that the individual could reasonably count on."
Which brings me to Jonathan Rauch.
RAUCH'S HAYEKIn his excellent book, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, Jonathan Rauch tackles what he calls the Hayekian argument against gay marriage (you can read the relevant excerpt from his book here). According to Rauch, the Hayekian problem with same-sex marriage is simply this: We do not, and most often cannot, know the full importance of some customs and institutions, specifically the mother of all institutions marriage. In numerous books and essays, Friedrich Hayek explained how societies, like markets, develop organically into what he called "spontaneous orders." No single person possesses anything close to the invisible collective knowledge held by the society as a whole. In much the same way that the price of a given stock or commodity may not make sense to any individual, the collective actions of millions of individual actors via the market determine the best or most efficient or most intelligent price.
Indeed, in the abstract, some customs may not even be the most efficient or best way to do things, but simply because millions or billions of people have "invested" in that system, the costs of changing the system would be far, far greater than the benefits. Maybe, in the abstract, there's a better way to design traffic lights. Who cares? In the real world, our society is deeply invested the way we've always done it.
And still other customs may have entirely invisible or forgotten or unknowable benefits, which we might not even appreciate until after they were gone. How many social benefits were attached to the evening family meal that no one could have predicted or appreciated before women's liberation and the modern economy eroded its prevalence? Indeed, some recent studies indicate that a significant portion of the obesity "epidemic" is attributable to the decline in home cooking, predominately by housewives. Just imagine the response if critics of feminism had said, "If women join the workforce, kids will get fat and cost us billions in health care."
So, Rauch instead relies on the second, or "weak," Hayekian argument. "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." This, Rauch adds, is "Good advice. But not advice, particularly, against gay marriage."
That's all good stuff, even if I'd quibble here and there. But I think Rauch miscasts the issue. What if it isn't a matter of "strong" and "weak" so much as fast and slow?
Here's what I mean: Rauch says that the Hayekian can suddenly transform an institution if it's obvious that that institution is unjust. Well, first of all, he's still expecting opponents to take his word for it that bans on same sex marriage are "scaldingly inhumane" based upon his own secular, rational interpretation of the facts.
Now, I'm perfectly willing to concede that such bans feel unfair to those who are directly affected by them heck, it's unfair that some people are gay in the first place. And for argument's sake I'm willing to concede that these laws are "scaldingly inhumane." The problem for Rauch is that millions upon millions of people not only don't agree with him, they've invested a great deal in a definition of a custom Rauch wants to redefine. In other words, while Rauch may think he's being cautious and temperamentally conservative, to huge numbers of his fellow Americans, he's being radical.
The only way to make the implementation of homosexual marriage un-radical is to persuade people that such a move isn't radical. And such persuasion is less dependent on reason than it is on time. Let's put it this way: Imagine that it's 1904 instead of 2004. Now, let's suppose that the Supreme Court legalized gay marriage. Imagine the social and political upheaval that would ensue. Now, according to its advocates, gay marriage is a matter of justice, so presumably legalization in 1904 would have been as warranted as in 2004. But since virtually no one was asking for gay marriage in 1904, the move would have seemed needlessly or even insanely radical, and no amount of reasonable argument would change that perception.
Rauch's version of Hayekianism says that change is necessary whenever the injustice is great. What if, instead, change is necessary when the injustice is obvious? For Rauch, of course, the injustice is already obvious. But obviousness for any individual is never the right criteria. The benefits of socialism or economic planning which Hayek dubbed "the fatal conceit" were obvious to a great mass of intellectuals and workers. No, the standard must be obviousness for the society generally.
Change without social consensus will seem to millions as merely the arbitrary abuse of power, as it surely would have if the Supreme Court had ruled in 1904 that those who were commonly called sodomites should, with the bang of a gavel, be given the right to marry one another. Rauch might respond that justice delayed is justice denied, or some such, and he might have a good case. But as a matter of human behavior, that wouldn't change the analysis. After all, we were right to abolish slavery as a matter of justice. But the lack of social consensus to do so birthed not only America's bloodiest war but generations of civil discord, which endures today.
In a sense, Rauch is uprooting Hayek by arguing that Hayek would support any reform to existing civilization that corrected the unjust, but he doesn't allow for the fact that it takes time for society to learn from the obviousness of this unjustness. As Edmund Burke said, we "must bear with infirmities until they fester into crimes." Indeed, Rauch writes:
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 sounds like a long process to me. Organic change depends on organic processes. Organic processes take time, particularly in democratic orders in which persuasion is the only route to consensus. Rauch may be completely convinced, but millions are not. The passage of time and the sifting of social trial-and-error has a teaching effect. As Edmund Burke also said, "Example is the school of mankind and they will learn at no other." It was only three decades ago when the American Psychiatric Association and the American Psychological Association removed homosexuality from their respective lists of mental disorders. It sounds awfully utopian to believe that in the span of a generation a few judges, under popular pressure, can convince the rest of society to accept an unprecedentedly radical revision of an institution that existed millennia before traffic lights, and upon which far more depends.