Objections to these unions: what Friedrich Hayek can teach us about gay marriage.

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.

Many Americans may agree that there are plausible, even compelling, reasons to allow same-sex marriage, and that many of the objections to such unions are overwrought, unfair, or misguided. And yet they draw back. They have reservations that are hard to pin down but that seem not a whit less powerful for that. They may cite religion or culture, but the roots of their misgivings go even deeper. Press them, and they might say something like this:

I understand how hard it must be to live a marriageless life, or at least I try to understand. I see that some of the objections to same-sex marriage are more about excluding gays than about defending marriage. Believe me, I am no homophobe; I want gay people to have joy and comfort. I respect their relationships and their love, even if they are not what I would want for myself.

But look. No matter how I come at this question, I keep bumping into the same wall. For the entire history of civilization, marriage has been between men and women. In every religion, every culture, every society--maybe with some minor and rare exceptions, none of them part of our own heritage--marriage has been reserved for the union of male and female. All the words in the world cannot change that. Same-sex marriage would not be an incremental tweak but a radical reform, a break with all of Western history.

I'm sorry. I am not prepared to take that step, not when we are talking about civilization's bedrock institution. I don't know that I can even give you good reasons. It is just that what you are asking for is too much.

Perhaps it doesn't matter what marriage is for, or perhaps we can't know exactly what marriage is for. Perhaps it is enough simply to say that marriage is as it is, and you can't just make it something else. I call this the Hayekian argument, for Friedrich August von Hayek, one of the 20th century's great economists and philosophers.

Hayek the Conservative?

Hayek--Austrian by birth, British by adoption, winner of the 1974 Nobel Memorial Prize in Economic Sciences--is generally known as one of the leading theoreticians of free market economics and, more broadly, of libertarian (he always said "liberal") social thought. He was eloquent in his defense of the dynamic change that markets bring, but many people are less aware of a deeply traditionalist, conservative strand in his thinking, a strand that traces its lineage back at least to Edmund Burke, the 18th-century English philosopher and politician. Burke famously poured scorn on the French Revolution and its claims to be inventing a new and enlightened social order. The attempt to reinvent society on abstract principles would result not in utopia, he contended, but in tyranny. For Burke, the existing order might be flawed, even in some respects evil, but it had an organic sense to it; throwing the whole system out the window would bring greater flaws and larger evils.

Outside Britain and America, few people listened. The French Revolution inspired generations of reformers to propose their own utopian social experiments. Communism was one such, fascism another; today, radical Islamism (the political philosophy, not the religion) is yet one more. "The attempt to make heaven on earth invariably produces hell," wrote Karl Popper, another great Austrian-British philosopher, in 1945, when the totalitarian night looked darkest. He and Hayek came of age in the same intellectual climate, when not only Marxists and fascists but many mainstream Western intellectuals took for granted that a handful of smart people could make better social decisions than could chaotic markets, blind traditions, or crude majorities.

It was in opposition to this "fatal conceit," as he called it, that Hayek organized much of his career. He vigorously argued the case for the dynamism and "spontaneous order" of free markets, but he asserted just as vigorously that the dynamism and freedom of constant change were possible only within a restraining framework of rules and customs and institutions that, for the most part, do not change, or change at a speed they themselves set. No expert or political leader can possibly have enough knowledge to get up every morning and order the world from scratch: decide whether to wear clothing, which side of the street to drive on, what counts as mine and what as yours. "Every man growing up in a given culture will find in himself rules, or may discover that he acts in accordance with rules--and will similarly recognize the actions of others as conforming or not conforming to various rules," Hayek wrote in Law, Legislation, and Liberty. The rules, he added, are not necessarily innate or unchangeable, but "they are part of a cultural heritage which is likely to be fairly constant, especially so long as they are not articulated in words and therefore also are not discussed or consciously examined."

Tradition Over Reason

Hayek the economist is famous for the insight that, in a market system, the prices generated by impersonal forces may not make sense from any one person's point of view, but they encode far more economic information than even the cleverest person or the most powerful computer could ever hope to organize. In a similar fashion, Hayek the social philosopher wrote that human societies' complicated web of culture, traditions, and institutions embodies far more cultural knowledge than any one person could master. Like prices, the customs generated by societies over time may seem irrational or arbitrary. But the very fact that these customs have evolved and survived to come down to us implies that a practical logic may be embedded in them that might not be apparent from even a sophisticated analysis. And the web of custom cannot be torn apart and reordered at will, because once its internal logic is violated it may fall apart.

It was on this point that 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 dais 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."

For secular intellectuals who are unhappy with the evolved framework of marriage and who are excluded from it--in other words, for people like me--the Hayekian argument is very challenging. The age-old stigmas attached to illegitimacy and out-of-wedlock pregnancy were crude and unfair to women and children. On the male side, shotgun marriages were coercive and intrusive and often made poor matches. The shame associated with divorce seemed to make no sense at all. But when modern societies abolished the stigmas on illegitimacy, divorce, and all the rest, whole portions of the social structure just caved in.

Not long ago I had dinner with a friend who is a devout Christian. He has a heart of gold, knows and likes gay people, and has warmed to the idea of civil unions. But when I asked him about gay marriage, he replied with a firm no. I asked if he imagined there was anything I could say that might budge him. He thought for a moment and then said no again. Why? Because, he said, male-female marriage is a sacrament from God. It predates the Constitution and every other law of man. We could not, in that sense, change it even if we wanted to. I asked if it might alter his conclusion to reflect that legal marriage is a secular institution, that the separation of church and state requires us to distinguish God's law from civil law, and that we must refrain from using law to impose one group's religious precepts on the rest of society. He shook his head. No, he said. This is bigger than that.

I felt he had not answered my argument. His God is not mine, and in a secular country, law can and should be influenced by religious teachings but must not enforce them. Yet in a deeper way, it was I who had not answered his argument. No doubt the government has the right to set the law of marriage without kowtowing to, say, the Vatican. But that does not make it wise for the government to disregard the centuries of tradition--of accumulated social knowledge--that the teachings of the world's great religions embody. None of those religions sanctions same-sex marriage.

My friend understood the church-state distinction perfectly well. He was saying there are traditions and traditions. Male-female marriage is one of the most hallowed. Whether you call it a sacrament from God or part of Western civilization's cultural DNA, you are saying essentially the same thing: that for many people a same-sex union, whatever else it may be, can never be a marriage, and that no judge or legislature can change this fact.

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.

The Decoy of Traditional Marriage

The Hayekian position really comes in two quite different versions, one much more sweeping than the other. In its strong version, the Hayekian argument implies that no reforms of longstanding institutions or customs should ever be undertaken, because any legal or political meddling would interfere with the natural evolution of social mores. One would thus have had to say, a century and a half ago, that slavery should not be abolished, because it was customary in almost all human societies. More recently, one would have had to say that the federal government was wrong to step in and end racial segregation instead of letting it evolve at its own pace.

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.

If the ban on same-sex marriage were only mildly unfair or if the costs of lifting it were certain to be catastrophic, then the ban could stand on Hayekian grounds. But if there is any social policy today that has a claim to being scaldingly inhumane, it is the ban on gay marriage. Marriage, after all, is the most fundamental institution of society and, for most people, an indispensable element of the pursuit of happiness. For the same reason that tinkering with marriage should not be undertaken lightly (marriage is important to personal and social well-being), barring a whole class of people from marrying imposes an extraordinary deprivation. Not so long ago, it was illegal in certain parts of the United States for blacks to marry whites; no one would call this a trivial disfranchisement. For many years, the champions of women's suffrage were patted on the head and told, "Your rallies and petitions are all very charming, but you don't really need to vote, do you?" It didn't wash. The strong Hayekian argument has traction only against a weak moral claim.

To rule out a moral and emotional claim as powerful as the right to marry for love, saying that bad things might happen is not enough. Bad things always might happen. People predicted that bad things would happen if contraception became legal and widespread, and indeed bad things did happen, but that did not make legalizing contraception the wrong thing to do; and, in any case, good things happened too. Unintended consequences can also be positive, after all.

Besides, by now the traditional understanding of marriage, however you define it, has been tampered with in all kinds of ways, some of them more consequential than gay marriage is likely to be. No-fault divorce dealt a severe blow to "till death do us part," which was certainly an essential element of the traditional meaning of marriage.

It is hard to think of a bigger affront to tradition than allowing married women to own property independently of their husbands. In What Is Marriage For?, her history of marriage, the journalist E.J. Graff quotes a 19th-century New York legislator as saying that allowing wives to own property would affront both God and nature, "degrading the holy bonds of matrimony [and] striking at the root of those divinely ordained principles upon which is built the superstructure of our society." In 1844 a New York legislative committee said that permitting married women to control their own property would lead to "infidelity in the marriage bed, a high rate of divorce, and increased female criminality" and would turn marriage "from its high and holy purpose" into something arranged for "convenience and sensuality." A British parliamentarian denounced the proposal as "contrary not only to the law of England but to the law of God."

Graft assembles other quotations in the same vein, and goes on to add, wryly, "The funny thing, of course, is that those jeremiads were right." Allowing married women to control their economic destinies did indeed open the door to today's high divorce rates; but it also transformed marriage into something less like servitude for women and more in keeping with liberal principles of equality in personhood and citizenship.

An off-the-cuff list of fundamental changes to marriage would include not only divorce and property reform but 'also the abolition of polygamy, the fading of dowries, the abolition of child hood betrothals, the elimination of parents' right to choose mates for their children or to veto their children's choices, the legalization of interracial marriage, the legalization of contraception, the criminalization of marital rape (an offense that wasn't even recognized until recently), and of course the very concept of civil marriage. Surely it is unfair to say that marriage maybe reformed for the sake of anyone and everyone except homosexuals, who must respect the dictates of tradition.

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. When openly gay couples began making homes together in suburban neighborhoods, the result was not Sodom on every street corner; when openly gay executives began turning up in corporate jobs, stud collars did not replace neckties. I vividly remember, when I lived in London in 1995, the forecasts of morale and unit cohesion crumbling if open homosexuals were allowed to serve in the British armed forces. But when integration came (under court order), the whole thing turned out to be a nonevent. Again and again, the homosexual threat turns out to be imaginary; straights have far less to fear from gay inclusion than gays do from exclusion.

Jeopardizing Marriage's Universality

So the extreme Hayekian position--never reform anything--is untenable. And that point was made resoundingly by no less an authority than F.A. Hayek himself. In a 1960 essay called "Why I Am Not a Conservative," he took pains to argue that his position was as far from that of reactionary traditionalists as from that of utopian rationalists. "Though there is a need for a 'brake on the vehicle of progress,'" he said, "I personally cannot be content with simply helping to apply the brake." Classical liberalism, he writes, "has never been a backward-looking doctrine. "To the contrary, it recognizes, as reactionary conservatism often fails to, that change is a constant and the world cannot be stopped in its tracks.

His own liberalism, Hayek wrote, "shares with conservatism a distrust of reason to the extent that the liberal is very much aware that we do not know all the answers," but the liberal, unlike the reactionary conservative, does not imagine that simply clinging to the past or "claiming the authority of supernatural sources of knowledge" is any kind of answer. We must move ahead, but humbly and with respect for our own fallibility.

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 passage, I think, could have been written with gay marriage in mind. The old view that homosexuals were heterosexuals who needed punishment or prayer or treatment has been exposed as an error. What homosexuals need is the love of another homosexual. The ban on same-sex marriage, hallowed though it is, no longer accords with liberal justice or the meaning of marriage as it is practiced today. Something has to give. Standing still is not an option.

Hayek himself, then, was a partisan of the milder version of Hayekianism. 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.

Good advice. But not advice, particularly, against gay marriage. Remember Hayek's admonition against dogmatic conservatism. 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.

It is worth recalling that Burke, the patron saint of social conservatism and the scourge of the French Revolution, supported the American Revolution. He distinguished between a revolt that aimed to overthrow established rights and principles and a revolt that aimed to restore them. Many of the American founders, incidentally, made exactly the same distinction. Whatever else they may have been, they were not utopian social engineers. Whether a modern-day Burke or Jefferson would support gay marriage, I cannot begin to say; but I am confident they would, at least, have understood and carefully weighed the possibility that to preserve the liberal foundation of civil marriage, we may find it necessary to adjust its boundaries.

RELATED ARTICLE: Lovers without borders.

What happens when gays from two different countries can't wed?

Ben Smith

One of the reasons we're supposed to care less about gay marriage than about black civil rights is that the stakes are so much lower today. Then it was about what might be called basic freedoms to live and work. Now it's about secondary rights such as inheritance and health care, things that can be addressed by contract law. As Sen. John Kerry (D-Mass.) said in a February presidential debate, at the center of the gay marriage debate is "terminology."

Tell that to David Kloss. In the summer of 2001, the 54-year-old oil exploration manager made a terrible mistake: He fell in love with a Canadian. Soon, he faced a choice shared by thousands of American citizens: Leave the man he loved, or leave the country.

The source of the dilemma is federal immigration law, which is based on the seemingly innocuous principle of "family reunification." Kloss' partner, Remi Collette, 35, moved to San Francisco to join him. But Collette was officially a tourist. He couldn't work legally, and he couldn't stay indefinitely. If Kloss and Collette had been a straight couple, they would have counted as a "family." Getting papers and eventually citizenship would have been a routine, bureaucratic process. As gays, they faced a stark choice: break the law with illegal work or a sham heterosexual marriage, or join the diaspora of self-described "love exiles."

"You go through life, you think you're American, you think you're in the land of the free," Kloss says. "Then suddenly I come to a situation where Remi couldn't stay, and my country says you either have to give up the man you love or get out."

A group that represents cross-border gay and lesbian couples, Immigration Equality, estimates that there are more than 25,000 such couples in the United States. Many break the law. They place advertisements tike this one in The Washington Blade, a gay paper: "Marriage-Minded GWM/GAM couple (1 American, 1 foreign), seeks lesbian couple (1 American, 1 foreign) for marriages of mutual interests."

That's a risky move, however, one that carries penalties of imprisonment and deportation. So in 2002 Kloss sold his beloved house in the center of San Francisco, with its view of the Marin headlands, and moved with Collette to Toronto. Last year they were married under Canadian law, which allows gays to bring in partners.

Kloss was lucky to have even that choice. If the partner doesn't hail from one of the countries with such a policy (which also include the United Kingdom, Israel, and several European states), gay couples find themselves perpetual tourists, insecure and unemployable.

John Sutton, for example, fell in love with a Mexican interior decorator who was working illegally in San Francisco. Sutton, 38, left a lob as an office manager for a coffee company, put his possessions in storage with friends in Fremont, and moved to Mexico--where he can't work--to be with his partner, Max. Sutton returns every six months to renew his tourist visa and take temporary employment.

"Our option was leave the U.S. or not be a couple, so it wasn't really a choice," he says. If Max were a woman, they could have married and set heron the fast track for a green card. Instead, Sutton was left watching the esoteric debate over gay marriage with something like envy. "Inheritance and hospital visitation rights and all of those things are great--but we would be thrilled just to live together here [in the U.S.]," he says.

So far, stories like Sutton's have not been heard much in the fight over gay marriage. That's partly because advocates of gay immigration rights try to keep the issue distinct from the charged marriage debate. But the argument for gay marriage loses force when it focuses only on the other rights--important, but not crucial--in question. By contrast, bi-national couples face a clear, terrible choice, and their stories should add urgency to a national debate that has focused on symbolism.

But don't expect the law to change any time soon, even if some states make gay marriage legal. Rep. Jerrold Nadler (D-N.Y.) has introduced a Permanent Partners Immigration Act that would put gays and straights on equal footing. The bill has 120 sponsors in the House and 11 in the Senate, but it hasn't moved since being introduced in 2000.

"I'm not terribly optimistic in the immediate future," says Nadler, who calls the status quo "gratuitously cruel." "We've been begging the chairman [of the immigration subcommittee of the House Judiciary Committee] for three years, and so far he hasn't scheduled a hearing or a markup or a vote."

The subcommittee chairman is Lamar Smith (R-Texas), who didn't respond to a request for comment on the bill. But Smith's views on homosexuality aren't a secret. He recently wrote in an online column (archived at lamarsmith.house.gov) that "same-sex marriage, and the lifestyle that accompanies it, should not be endorsed because it is unhealthy and unnatural."

The backlash in Washington is in stark contrast to expanding rights for gays in Europe, Canada, and elsewhere. For gays and lesbians with foreign partners, America is becoming a less and less attractive place to live. There's no reliable estimate of how many Americans leave each year for "exile," says Adam Francouer of Immigration Equality, but "we expect that number to increase as the gap widens."

Ben Smith ([e-mail]) is a reporter for the New York Observer.

Jonathan Rauch is a columnist for National Journal, a correspondent for The Atlantic Monthly, and a writer in residence at the Brookings Institution in Washington, D. C. This article is adapted from his book Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America. Copyright 2004 by Jonathan Rauch. Reprinted by arrangement with Times Books, an imprint of Henry Holt and Company. All rights reserved.