Friedrich Hayek, the Nobel prize winning philosopher and economist,
argued that many traditions and institutions of modern civilization “which are
clearly the results of human action” are often erroneously assumed to be
“consciously designed by a human mind.”
Such institutions, he said, should not easily be tampered with by
political powers as they were not designed, but rather evolved to fill certain
functions. We often have very limited understanding of what those functions may
be. On the surface, Hayek’s warnings should bolster the conservative case
against marriage equality, as they appear to be a presumption in favor of the
status quo—a sort of precautionary principle for conservatives. 1
Yet, Hayek himself said he was “not averse to evolution and change”
and that when “spontaneous change has been smothered by government control, it
[classical liberalism] wants a great deal of it.”2 Hayek’s
liberalism was in conflict with the “conservative attitude” which was “fear of
change, a timid distrust of the new as such.”3 Hayek said his view
“is based on courage and confidence, on a preparedness to let change run its
course even if we cannot predict where it will lead,” all of which sounds
contrary to Hayek’s precautionary principle.
Hayek was not a fearful conservative. A Hayekian social order is one
that evolves without coercion forcing change, or preventing it. Conservatives,
Hayek said, believe order to be “the result of the continuous attention to
authority.” They only feel safe when “assured that some higher wisdom watches
and supervises change, only if he knows that some authority is charged with
keeping the change ‘orderly.’” 4
Hayek argued that the social order could change, and often should
change. He said that for these changes to “become legitimized…[they] have to
obtain the approval of society at large—not by a formal vote, but by gradually
spreading acceptance.” He thought such changes were especially critical if
there is “conflict between a given rule and the rest of our moral beliefs.”
Under those circumstances, we “can justify our rejection of an established
rule.”5
Hayek wrote that “successive changes in morals were therefore not a
moral decline, even though they often offended inherited sentiments, but a
necessary condition to the rise of the open society of free men.”6 He said that it was “the evolution of
tradition which made civilization possible.”7 In particular, Hayek
noted that these changes came against the wishes of what we today would call
the Religious Right:
Religious prophets and ethical philosophers have of course at all
times been mostly reactionaries, defending the old against the new principles.
Indeed, in most parts of the world the development of an open market economy
has long been prevented by those very morals preached by prophets and
philosophers, even before government measures did the same. We must admit that modern civilization has
become largely possible by the disregard of the injunctions of those indignant
moralists.”8 [Emphasis in the original.]
A brief inquiry into the history of marriage shows it to be a
constantly evolving institution. At different times it served different
purposes. The “traditional” family conservatives laud is a relatively modern
invention. Often, marriage was not particularly concerned with raising children
and it rarely dealt with the issue of love. Stephanie Coontz noted, “For many
centuries the notion of family referred to authority relations rather than love
ones.”9
Historically speaking, the primary purpose of marriage was often
political, or related to the distribution and ownership of property. At times,
a marriage had to be approved by the village in order to make sure that
property arrangements were not disrupted in too chaotic a manner. As this
notion of marriage waned, it was often replaced with the idea that marriage was
about the division of labor—certain tasks were reserved to men, others to
women.10 So, when Native American cultures allowed same-sex
marriage, they did so with the proviso that one of the partners had to perform
the tasks of the opposite gender.11
Until the rise of the Christian state, marriage evolved according to
Hayekian principles. Endowed with state power, Christianity, however, attempted
to take control of marriage and forced it to change in ways beneficial to the
church’s ever expanding political power. Much of the Vatican’s interest in
regulating marriage had to do with giving it power over members of the
aristocracy seeking to marry or divorce. The Church could manipulate such
relationships to its benefit, denying marriages deemed detrimental to Vatican
power, or allowing them as the case may be. Similarly, the Church could permit
annulments when beneficial to do so, or deny them when not.
Only in the 4th century did the
Christian emperor Theodosius, as part of what historian John Boswell called a
campaign of “greater and greater totalitarian control,” decree that only
Christianity would be allowed to exist as a religion. He also banned same-sex
marriages “which had hitherto been legal (at least de facto) and well known” in
342.12 Boswell argued that the Roman state went from tolerance of
same sex relationships to intolerance “almost wholly” as a “consequence of the
rise of corporate states and institutions with the power and desire to regulate
increasingly personal aspects of human life.”13
The Church
got involved in marriage only after state intervention on its behalf. Christian
law professor Daniel Crane wrote that, "as the power of the church grew,
it gradually sought to establish control over marriage directly."14
It was only in 1546 that the Roman Catholic Church declared that a marriage was
only valid if performed by a priest, with two witnesses. This attempt to force
marriage into the church was not an immediate success. It opposed centuries of
tradition, where marriage was seen as a private contract and not a matter of
religion at all.
Mary Ann
Glendon, in The Transformation of Family
Law, wrote:
“The greatest obstacle to the direct enforcement by the Church of the new
Christian ideas about sex and marriage was that marriage was regarded
everywhere in Europe in the first half of the Middle Ages as a personal and
purely secular matter.”15
The
church’s marriage coup was Fabian in nature. “At first, the Church barely tried
to exercise jurisdiction in its own name, keeping its intervention in family
affairs to primarily within the confines of the relationship between priest and
penitent. Its involvement in the formation of marriage, for example, developed
only slowly, with the priestly blessing of marriages which began as a custom
and centuries later became a requirement.” It was only with the Council of
Trent (1545-63) that the church mandated that a priest, with two witnesses,
conduct a “marriage” for it to be valid. Prior to this, even private vows taken
without the church were accepted to establish a marriage.16
One of the
driving forces for more control over marriage was the issue of property. As
Glendon notes, marriages often produced “shifts of wealth and power” which were
unsettling to the aristocracy and the church. Until now Christians took little
note of marriage other than as a private relationship, sometimes blessed by the
church, but legitimized only by the consent of the couple themselves, not by
church officials or the state. But the Church found the wealthy elites
demanding some sort of control because of the property issues involved. “The
advocates of change claimed that informal marriages threatened property rights,
and endangered social peace and private morality.”17
This led to
the Decree Tametsi requiring a marriage ceremony with a priest and two others
as witnesses. “The Decree also mandated the publication of banns or marriage
and the keeping of official records of marriage.”18 Publishing banns
allowed family, and others interested in the distribution of property, to be
warned of impending nuptials and gave them time to intervene to prevent
marriages that would disrupt the distribution of property and power in unwanted
ways.
Protestants
rejected a religious monopoly over marriage. Crane wrote that Reformationists
saw the state, not the church, as the prime custodian "of matrimony as a
civil institution." The authoritarian John Calvin passed the
"Marriage Ordinance of Geneva," requiring a state permit to marry.19
The other
leading Protestant of the day, Martin Luther, wrote: "Since marriage has
existed from the beginning of the world and is still found among unbelievers,
there is no reason why it should be called a sacrament of the New Law and of
the church alone."20 However, Luther feared clandestine
marriages “for enabling strangers to marry into wealthy families and to obtain
a share of estates.”21 Protestant jurisdictions started mandating
the presence of a minister and requiring parental consent to protect property.
Within a
few decades, most of Christian Europe had laws regulating marriage as a state
institution. Contrary to the claims of the religious right, the State did not
take marriage away from the Church. Protestant Reformers demanded that monopoly
claims over marriage, recently asserted by Catholicism, be repudiated. Yet, the
desire to protect property remained which meant “the newly emerging states
acquired jurisdiction more or less by default.” Secular authorities “simply
took over much of the ready-made set of rules of canon law” effectively meaning
that Church law was being imposed by the State.22
This cozy
relationship between church and state remained undisturbed until the rise of
classical liberalism, with its libertarian sentiments about individual rights.
Evangelical author John Witte
argues this began with John Locke's
Two Treatises on Government (1698)
where Locke "suggested that a natural and contractual perspective could be
defended without necessary reference to spiritual or social perspectives on
marriage. He had hypothesized that a law of marriage based on contract could be
valid even if God were not viewed as the founder of the marriage contract, nor
His Church engaged as an agent in its governance."
23
Classical
liberalism became a major influence in Western culture, leading to the
abolition of slavery, the rise in the status of women, de-monopolizing of
agriculture from landed elites, free trade, and to the emergence of capitalism
itself. It also brought “new” ideas about marriage into the legal system. Prof.
Witte argues that the liberal reforms embedded two conflicting views of marriage
into law, "one rooted in Christianity, a second in the Enlightenment. Each
of these traditions has contributed a variety of familiar legal ideas and
institutions—some overlapping, some conflicting."24
Catholics
saw marriage as a church sacrament. Protestants said it was a relationship
between a couple and the wider community, and thus more a political concern
than a religious one. Witte wrote, "Enlightenment exponents emphasize[d]
the contractual (or private) perspective."25 Marriage laws,
according to Witte, changed drastically because of this:
Exponents
of the Enlightenment advocated the abolition of much that was considered sound
and sacred in the Western legal tradition of marriage. They urged the abolition
of the requirements of parental consent, church consecration, and formal
witnesses for marriage. They questioned the exalted status of heterosexual
monogamy, suggesting that such matters be left to private negotiation. They
called for the absolute equality of husband and wife to receive, hold, and
alienate property, to enter into contracts and commerce, to participate on
equal terms in the workplace and public square. They castigated the state for
leaving annulment practice to the church, and urged that the laws of annulment
and divorce be both merged and expanded under exclusive state jurisdiction.26
The rise of
classical liberalism, with its companion, capitalism, meant that income was no
longer a function of the family as whole. Sociologist Barry Adam, in Christopher
Street, observed: "Capitalism laid the groundwork for voluntary
relationships based on personal preference, the precondition for 'romantic
love.' Capitalism did not cause romantic love, it allowed it to flourish."27
Historians John D'Emilio and Estelle Freedman wrote that these changes meant
that marriages could be chosen "with less attention to property and family
considerations" and that "some young people even disregarded parental
opinion altogether. Operating within a political climate that decried tyranny
and exulted the rights of the individual some children married over parental
objections while others failed to inform their parents at all."28
Of course,
these shifts in the economic structure, and the emergence of a culture of
individual rights, had a dramatic impact on gay and lesbian people. Prof. Steve
Horwitz wrote, "This
created both the "singles culture" of the 20th century but also
enabled homosexuals to adopt the full identity of being gay or lesbian, as
opposed to just engaging in homosexual acts. It's no surprise that gay/lesbian
culture thrived early on in urbanized environments (industrial jobs and
anonymity were the keys). Having made modern gay identity possible and having
caused marriage and family to be focused on love and consumption, rather than
child-making and child-raising complementarities, is it any surprise that gays
and lesbians would want 'in' to the institution of marriage?"29
Marriage
itself continually evolved, often as a result of the changing economic system
brought about by capitalism. With the demise of home-based production, the
gender-based division of labor began to decline. The principles of classical
liberalism about equality of rights also started to be applied to women as
well, and eventually even to homosexuals. The basis for marriage became
romantic, not economic. Marriage was seen as a civil contract between two
individuals that, by its nature, made the larger social structure more stable
and prosperous—couples were more economically stable and less likely to impose
on others, for instance.
The evolution of heterosexual marriage created the demand for same-sex
marriage. Individuals became free to choose their own spouse. Previously such
decisions were often left to families or sometimes the larger community, and
were done for reasons of property or politics. Leaving individuals free to
choose their spouse meant gay individuals might choose spouses of the same
gender.
In addition, gender-based roles in marriage began to fall away. The
work place became less male-centered and labor saving devices reduced the
amount of time devoted to housework. The tasks of men and women, both in the
labor market and at home, became more equal, with gender roles becoming less
and less important. In addition the home became less and less about production
of goods and services, with the division of labor, and more about shared
consumption and the nurturing of family members. Love became the central focus
of marriage.
At the same time heterosexual marriage was evolving, the nature of the
gay community was undergoing change as well. The Stonewall generation had aged
and settled down. Many were in long-term relationships, often establishing
families with children. Gays were discovering precisely how regulations banning
same-sex couples from entering into marriage contracts were detrimental to
their well being.30
They found they were taxed at higher rates by being denied marriage
deductions. Cross-national couples found one partner being deported because,
unlike their straight counterparts, the American partner could not sponsor the
foreign partner for residency. They found that even with wills in place, the
law gave family priority over “strangers,” as their spouses were legally
defined, making it easier to challenge the will. While the law had undone harm
inflicted on children deemed “bastards,” it created a new class of children
with lesser protections and lesser rights: children in gay families.
When on their deathbed, some gay people were denied the right to be with their
partner because hospitals restricted such visits to “family only.” In cases
where a gay person was incapacitated, due to a stroke, courts recognized
anti-gay relatives over loving spouses of many years—something not allowed to
happen to married couples. Gay couples that attempted to achieve legal
protections offered by a legal marriage contract often spent between $5000 and
$10,000 on various legal documents only to find that they could often be
ignored because state law trumped them, or found that there were simply
situations that could not be anticipated. Often, there were simply issues that
no private agreement could resolve—such as changing immigration laws, tax laws,
child custody laws, etc.31
There are thousands of laws and hundreds of legal rights and benefits
directly tied to one’s marital status. There is no groundswell to change this
situation, not even from individuals who fight same-sex marriage on the grounds
that all marriage should be privatized. Nor should it be ignored that many of
these advocates of “private” marriage are themselves legally married. So,
whether or not privatized marriage is desirable, it is not likely to be
implemented anytime soon and there is no real effort to make that change. In
the meantime, millions of same-sex couples are left in legal limbo, to the detriment
of their rights.
Even if privatizing marriage is the
optimal solution, the immediate harm being done to gay couples implies that the
“second-best option,” marriage equality, be implemented. And it, unlike the
“ideal” is politically feasible today.
Given that marriage has been evolving, and given that acceptance of same-sex
couples has been evolving for some three decades, changing marriage laws to
recognize same-sex relationships now satisfies Hayek’s concerns. Private
acceptance of marriage has evolved quickly. Major corporations give benefits to
their employees in such relationships and even national polls show that a slim
majority of Americans favor same-sex marriage, while a substantial majority
favors granting gay couples the same legal rights as heterosexual couples. In
addition, this reform fits the major moral principles of libertarianism, the
principles on which this country was founded. It respects the equality of
rights of all individuals, and it limits the state’s power to deny gay couples
access to the marital contract, while reducing the power the state has over
these couples to thwart their choices.32
1.
F.A. Hayek, New
Studies in Philosophy, Politics, Economics, and the History of Ideas.
University of Chicago Press, 1978, p. 4.
2.
F. A Hayek, The
Constitution of Liberty, University of Chicago Press, 1960, p. 399.
3.
Ibid, p. 400.
4.
Ibid.
5.
F.A. Hayek, Law,
Legislation and Liberty: The Political Order of a Free People, Vol. 3, The
University of Chicago Press, 1979, p. 167.
6.
Ibid.
7.
Ibid, p. 168.
8.
Ibid, pp. 165-166.
9.
Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap,
Basic Books, 2000, p. 44.
10. See
Stephanie Coontz, Marriage, A History:
How Love Conquered Marriage, Viking, 2005 for an extended discussion
regarding the various functions that marriage has served over the centuries
from culture to culture.
11. William N.
Eskridge, Jr., “A History of Same-Sex Marriage,” Virginia Law Review, Vol.
79, No. 7, Oct., 1993), pp. 1419-1513.
12. John Boswell, Christianity, Social Tolerance and Homosexuality, The University of
Chicago Press, 1980, p 123.
13. Ibid. p 37. Boswell wrote “gay people
were actually safer under the Republic, before the state had the authority or
means to control aspects of the citizenry’s personal lives. Any government with
the power, desire, and means to control such individual matters as religious
belief may also regulate sexuality, and since gay people appear to be always a
minority, the chance that their interests will carry great weight is relatively
slight.” For a discussion of the relative tolerance of Roman society regarding
homosexual relationships see Craig A. Williams, Roman Homosexuality: Ideologies of Masculinity in Classical Antiquity,
Oxford University Press, 1999.
14. Daniel A. Crane, “A ‘Judeo-Christian’
Argument for Privatizing Marriage”, Cardozo
Law Review, Vol. 27:3, p. 1232.
15. Mary Ann Glendon, The
Transformation of Family Law: State, Law, and Family in the United States and
Western Europe, The University of Chicago Press, 1989, p. 24.
16. Ibid. Glendon wrote, “Until the Council of Trent, private and
informal marriages were as valid as public, formal ones.” Informal marriages,
however, remained common and were recognized as marriages until 1892. The
Church of England recognized them until 1753, see page 30.
17. Ibid. pp. 28-29.
18. Ibid. p. 29.
19. Crane, p. 1234. For information on Calvin’s positions on
marriage see John Witte’s Sex, Marriage
and Family in John Calvin’s Geneva, William Eerdmans Publishing, 2005.
20. Martin Luther, Luther’s
Works, vol 35. Ed., Abdel R. Wentz and Helmut T. Lehman, Fortress Press,
1959, p. 92.
21. Glendon, p. 29.
22. Ibid, p. 31.
23. John Witte Jr., From
Sacrament to Contract, Westminster John Knox Press, 1997, p. 196.
24. John Witte Jr., An Apt
and Cheerful Conversation on Marriage, Centre for Theology and Public
Issues, 1999, p. 10.
25. Witte, From Sacrament
to Contract, p. 245.
26. Ibid. pp 10-11.
27. Barry Adams, Christopher
Street, 64:50-53.
28. John D’Emilio and Estelle Freedman, Intimate Matters: A History of Sexuality in America, The University
of Chicago Press, 1988, p. 43. They noted, as well, that with the rise of
classical liberalism, following the American Revolution, there was “an overall
decline in state regulation of morality and a shift in concerns from private to
public moral transgressions.” [p. 42]
30. See George Chauncey, Why
Marriage?, Basic Books, 2004, for a general discussion on why marriage
became an issue within the gay community.
31.
Stephanie Coontz wrote that that a marriage license today “still
determines what obligations a couple can keep—who gets hospital visitation
rights, family leave, health care and survivor’s benefits.”
The New York Times, “Taking Marriage
Private,” November 25, 2007. Also see
The
Cost of Marriage Inequality to Gay, Lesbian and Bisexual Seniors, Gary
Gates and Lisa Bennett, Human Rights Campaign, January 29, 2004;
Benefits Denied, Ben Furnas and Josh
Rosenthal, Center for American Progress, March 2009; Sandra Block,
USA Today, “Gay couples enter golden
years with more risk”, May 16, 2004; and Evan Wolfson,
For Richer, For Poorer: Same-Sex Couples and the Freedom to Marry as a
Civil Right, Drum Major Institute for Public Policy at
www.drummajorinstitute.org/library/article.php?ID=5518.
32. For a discussion on how the marriage
contract limits the ability of the state to intervene in a relationship see Jason
Kuznicki’s, Marriage Against the State: Towards a New View of Civil Marriage,
Policy Analysis, No. 672, January 12, 2011, The Cato Institute.
This essay was written as an original submission to the libertarian/feminist anthology edited, The Free Woman, by Sharon Presley and Ross Kenyon, to be forthcoming.
