Monday, August 16, 2004

Laws Are Laws, No Matter Where They Roam

Eric Helland, who is now writing for the Marginal Revolution, wrote a post that cites an article by Jonathan Rauch, claiming Hayek would have been against legalizing gay marriages. The essence of the argument is a quote from Hayek in which he compares customs to prices. If prices have bunches of tacit knowledge stored in them, it makes sense that customs do too; they are both the result of spontaneous order. If we try to change them, then who knows what will happen?

Like me, Helland disagrees with this conclusion, saying “Hayek is making a case for gradual institutional change.” In order words, Helland believes that the decision should be up to the states. Nothing like a wide sweeping ban or legalization should be enacted.

But if we really do care about spontaneous order, then we can only conclude that’s not the answer, either. Saying the government should move slowly in legalizing gay marriage is like saying farm subsidies should be weaned away. Like a tariff artificially adjusting the price of a good, a law against marriage—federal or otherwise—artificially adjusts the cultural landscape. Cultural practices, like prices, are evolving things and they have to change with the world around them. While gay marriages really might have been fundamentally disrupting fifty or a hundred years ago, we don’t know if that’s the case now. “Institutional gradualism,” as Helland puts it, wouldn’t be Hayek’s preferred vehicle for change because it legitimizes laws that really do fall to the fatal conceit: social behavior between individuals should be applied to everyone in a community whether they want it or not.

Laws against gay marriages, like almost any laws, are made at the whim of political interests. Sometimes they are perfectly appropriate but usually they’re not. In either case, they become archaic as the world changes. The vast majority of laws aren’t perfect reflections of the cultural conditions and will ultimately become barriers in a society valuing spontaneous order.


Chris said...

I think one of the fundamental arguements that opponents of gay marriage make is that it would disrupt the institution of marriage to allow others to be granted the right to marry (there are also various other arguements about how people would try to marry their dogs, etc. but I won't get into that.) Anyways, perhaps one of the best solutions would be to privatize marriage. How so, you may ask. Simple, the state would simply be required to recognize relationships between consenting adults of any combination of genders and even any number (up to a certain point, perhaps more than 4 is a bit absurd.) Then, the title of "marriage" itself would be determined by particular churches or religions. In other words, the stae would grant civil unions to everyone and the official title of "marriage" would be up to private institutions to confer (i.e. - churches or synagogues.) Under this scenario, the "instiutional gradualism" that Helland suggests would work its way through various *private* institutions such as churches instead of being made by blindeyed politicans who have their own vested ideological interests at heart.

-Ron said...

No Gay Roaming

Law concerning marriage is a peculiar breed, in my view, because this is an area where there has been long-standing overlap of jurisdiction between religion and government. And I think that this continues to be the case today. If polls are to believed, about ½ of the voting public, give or take, favor and disfavor gay marriage. We’ll come back to this in a moment.

From what I can tell, there are two distinct policy initiatives that concern gay marriage. The first is to prevent the state sanctioning of gay marriage, and focus on the slew of consequences, intended and not, surrounding the legal obligation of recognizing gay unions. The second plan is to have heterosexual marriage formally and permanently sanctioned and enshrined by the state. There seems to be a bit of a double standard here.
Those who wish to prevent the legalization (state sanctioning) of gay marriage typically cite homosexuality as being a matter of moral conscious; that the state should not have the right to force someone to recognize something that is explicitly contrary to their religious belief. Okay, I’m with them so far. But then they want to use that same state power to do exactly the same thing, ramming the law up the ass of homosexuals.

Marriage, as far as the state’s interest is concerned, is confined to child rearing and inheritance. Child rearing is usually best when shared by the biological parents. But this is not always feasible, and not always the best arrangement. And it is not clear that non-traditional arrangements are somehow incapable successfully raising children. In any case, the states only real interest is to ensure that kids aren’t living on the street. As for inheritance, modern civil law has all but eliminated marriage as anything other than a formality, legally speaking. And since we no longer hold to progenitor inheritance, it is even less of an issue than it was when such laws were first written in Europe. So neither state interest seems to justify either endorsement or denial of gay marriage.

Which leads me to my own conclusion: the status quo. I say, let the status quo stand and work itself out without Congressional or Judicial interference. Let individual states pass what laws they may, making gay marriage legal; and then pass laws of reciprocity with one another. And those that don’t, won’t. This, I think, will allow people to vote with their feet, will make certain individual states harbors for moralists at both end of the sexual spectrum, and allow for the ordinary separation of belief groups into homogeneous subgroups. Not so far off from the principle of the free state project if you ask me.