A Very Civil Union: F.A. Hayek and Marriage Equality

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 4^th 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]

29.  Steven Horwitz, “Lots of Thoughts on ‘The Future of Marriage,’ Cato Unbound, http://www.cato-unbound.org/2008/01/23/the-editors/best-of-the-blogs-steven-horwitz-on-economic-forces-and-the-family/

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.