Why opposing gay marriage is the radical position.

I wish to tackle the one argument opposing marriage equality, which I think has some appearance of merit. Jane Galt (Meagan McArdle), who said she would refuse to take a stand on marriage equality, explained it this way:

…Institutions have a number of complex ways in which they fulfill their roles, and one of the very important ways in which the institution of marriage perpetuates itself is by creating a romantic vision of oneself in marriage that is intrinsically tied into expressing one's masculinity or femininity in relation to a person of the opposite sex; stepping into an explicitly gendered role. This may not be true of every single marriage, and indeed undoubtedly it is untrue in some cases. But it is true of the culture-wide institution. By changing the explicitly gendered nature of marriage we might be accidentally cutting away something that turns out to be a crucial underpinning.

McArdle, who purports to be a libertarian, explains “as a matter of principle, it is probably a bad idea to let someone go mucking around with social arrangements.” One example McArdle gave was that making it possible to divorce: “When the law changed, the institution changed. The marginal divorce made the next one easier. Again, the magnitude of the change swamped the dire predictions of the anti-reformist wing; no one could have imagined, in their wildest dreams, a day when half of all marriages ended in divorce.”

The problem with this example is that it is false. It has been widely know to be false for sometime but is still popular in conservative circles. Mark Hoofnagle wrote:

Further, the idea that 50% of marriages end in divorce is just an oft-repeated myth. It's a statistical flub that comes from comparing the number of marriages in a given year to the number of divorces in a given year. However, since the marriages and divorces aren't occurring in the same year, this doesn't give an accurate picture of how many marriages are failing and is notoriously susceptible to population dynamics. Your actual chances of a failed marriage are about one in four, and the 50% figure is considered to be statistical nonsense.

Truth or Fiction explained the error, one that McArdle ought to have caught.

A spokesperson for the U.S. National Center for Health Statistics told me that the rumor appears to have originated from a misreading of the facts. It was true, he said, if you looked at all the marriages and divorces within a single year, you'd find that there were twice as many marriages as divorces. In 1981, for example, there were 2.4 million marriages and 1.2 million divorces. At first glance, that would seem like a 50-percent divorce rate. Virtually none of those divorces were among the people who had married during that year, however, and the statistic failed to take into account the 54 million marriages that already existed, the majority of which would not see divorce.

When McArdle regurgitates the arguments she hears from social conservatives she doesn’t know that they are, in fact, using a Hayekian argument about social institutions. Hayek argued that many of the functions of institutions and traditions are not understood by those who participate in them. He argues that consciously manipulating such traditions may affect the less understood functions of those institutions with negative consequences.

Yet, Hayek did not oppose the evolution of institutions. As I quoted previously, his form of liberalism, he said, does not “stand still”. So which Hayek do we embrace: the one who cautioned about centrally planned changes to institutions or the one that saw liberalism bravely moving forward with change?

Actually, I am not convinced there is a contradiction. Hayek accepted the idea that natural evolution can take place within institutions. So what about the institution of marriage? Marriage, as an institution, was regimented by legislative action. Its natural was held back in its legal aspects, even while the other aspects of marriage were evolving. It is useful to remember that State and Society are not the same thing. As Felix Morley noted, “society associates” people voluntarily while the state subjects them.

What is happening now, with political bodies recognizing marriage equality, is that the civil institution of marriage is catching up the private, real nature of marriage. Society, the web of voluntary associations, has largely accepted marriage equality. Major corporations already recognize such relationships in terms of insurance and employment benefits. Even many churches, outside the Catholics, Mormons and fundamentalists, recognize or accept same-sex couples. Virtually all major branches of Society have evolved to accept gay couples. Not so the State.

In that realm where the State has not exerted control marriage has already evolved. The anti-equality lobby has actually used state coercion to forbid private institutions from evolving. In essence, they are trying to prevent natural evolution through the use of top-down coercion. It can be argued that the individuals who are meddling with the institution are those using political control to prevent evolution of marriage in the social sphere.

What we have here is not something to which Hayek’s concern can easily be applied. The State came in and took one aspect of marriage, that of the legal ramifications, and enforced stagnations upon it so that evolution was not possible.

Consider what happens along the San Andreas Fault. One side of the fault continues to move. The other side does not. Pressure is built up and then it suddenly lurches in an earthquake, which can be rather. In this sense gay marriage is a cultural earthquake. One side of the marriage fault line, the private, societal side, has slowly been changing. The other side has stood still. Eventually the pressure builds and we get a quake.

Society has evolved when it comes to marriage. The State has not.

This is one of the problems of political control of various industries. The state, rarely forces evolution, it usually prevents it. This is especially true in the fields of technology where changes can be rapid. Politicians have a tendency to try to impose stagnation by mandating the status quo. This is true in the social sphere as much as in the economic sphere. Milton Friedman warned: “"The characteristic feature of action through political channels is that it tends to require or enforce substantial conformity. The great advantage of the market, on the other hand, is that it permits wide diversity."

Hayek explained it this way:

If there were omniscient men, if we could know not only all that affects the attainment of our present wishes but also all our future wants and desires, then there would be little case for liberty—while liberty of the individual, in turn, would of course make complete foresight impossible. Liberty is essential in order to leave room for the unforeseeable and unpredictable: we want it because we have learnt to expect from it the opportunity of realizing many of our aims. It is because every individuals knows so little, and in particular because we rarely know which of us knows best, that we trust the independent and competitive efforts of many to induce the emergence of what we shall want when we see it.

Evan Luard, a British socialist, had a similar insight. He recognized that “collective power is also conservatives because within the democratic system, political parties and leaders are obliged to converge to a point near the average views of the majority.” Luard realized that the majorities “are rarely in favor of important or imaginative changes.”

State control stagnates the field under control. It makes innovation difficult, sometimes impossible. It prevents evolution. We have marriage wars today because marriage is partially private and partially nationalized. The private side of recognizing relationships pretty much accepts same-sex couples on par with opposite-sex couples. The state side does not. Political control of aspects of marriage meant that those particular aspects didn’t take into account the real state of marriage, as it exists today. You can’t find what marriage means today by looking at the state sanctioned institution. To find out what marriage really looks like you have to look at the private sphere. And, whether social conservatives like it or not, that private sphere has already recognized same-sex relationships.

Interestingly that means the politicians pushing for marriage equality are not the ones trying to centrally plan marriage or force “significant changes” on others. Those changes have already taken place outside the state’s arena and politicians are merely playing “catch up.”

Does this mean that the state doesn’t have to change and we can stay where we are, with the private sector evolving and the State sector stagnating? Unfortunately that is not possible. The state has used marriage status as a major deciding factor when it comes to the recognition of rights of couples.

For instance, one argument that was made to the Iowa Supreme Court, to justify denying same-sex couples marriage rights was that the state taxes same-sex couples at a higher rate than “married couples.” The defenders of the status quo argued that allowing gays to marry would deprive government of needed tax revenues. I quote the Court’s description of the argument as presented to them: “By way of example, the County hypothesizes that, due to our laws granting tax benefits to married couples, the State of Iowa would reap less tax revenue if individual taxpaying gay and lesbian people were allowed to obtain a civil marriage.”

If all aspects of marriage were privatized then there would be no battle or conflict. The problem is that some aspects of marriage are under state control or marriage is used by the state as a marker for the recognition of certain legitimate rights. Private contracts simply are incapable of granting those rights since they don’t reside, at this time, with society. Ultimately the full privatization of marriage is what is most desirable but such utopian dreams are just that, still dreams. And same-sex couples exist today in this world. Until then justice mandates that we allow them to marry. What that means is that the state system of marriage needs to evolve the same way the private conception of marriage already has.