Jonathan Rauch, Gay Marriage, and Utopia

The gay marriage issue is not one that really gets any passion aroused in the hardcore segment of the libertarian population. If governments have no business at all in marriage, what benefit can expanding the pool of relationships on which they have a claim have?

In fantasyland, the government has no involvement one way or the other with marriage (depending on your flavor, there might not even be a government). However, this is not particularly useful in the actual world, especially for people who wish to get married by cannot.

Having said that, I ask the reader to put aside his intolerance of the better and his blind insistence on only the best, immediately, if only for a few minutes. This position has its place, but we're a long way from the ideal, and in the meantime we might actually have to dirty our hands supporting the merely better.

Now for the main points. Tonight at a bookstore in Atlanta I saw Jonathan Rauch speak about his new book, Gay Marriage : Why It Is Good for Gays, Good for Straights, and Good for America. Rauch focuses a good amount of significance to the social aspect of marriage, that is to say the interaction not just between the two people involved but their interaction with the community at large. This part I don't feel entirely qualified to opine about, not being married. His main point, however, is brilliant and should be told to those middle-ground citizens whose opinions will affect elections in the years to come. I quote from the book:

Marriage can be universal and thus the norm for serious couples, or it can be exclusive and thus only one of several competing norms for serious couples.

The defenders of "family values" are wrong to want to exclude gays from marriage. If they really valued the institution and recognized its importance to society, they would want same-sex marriages included.

He says in an article:

At a time when marriage needs all the support and participation it can get, homosexuals are pleading to move beyond cohabitation. We want the licenses, the vows, the rings, the honeymoons, the anniversaries, the benefits, and, yes, the responsibilities and the routines. And who is telling us to just shack up instead? Self-styled friends of matrimony.

Gays are not destroying marriage. Gays have nothing to do with it (yet). Heterosexuals who are marrying in fewer numbers are the ones mainly responsible for making cohabitation and promiscuity socially acceptable. For social conservatives, who see this an an unequivocally bad development, and homosexuality as a prime example of it, the best option is to get the gays out of the clubs and into families rather than to block gay marriage.

Hence, gay marriage is good for gays, good for straights, and good for America.

In the long run, this is not the best solution. The government has no proper role in marriage. Ultimately we want to roll back its powers far, far beyond this area. But in the meantime, equality before the law and a little bit of pragmatism should be our guides.

Rauch also said he is opposed to a national, one-size-fits-all approach from either side, e.g. a Supreme Court decision enforcing one state's legal recognition onto all the others or a "Defense of Marriage" Amendment to the Constitution. His opposition to the latter is obvious, but to the former?

He believes, probably correctly, that a national mandate will enforce legal acceptance but harm social acceptance of same-sex marriage (think Roe v. Wade). The alternative, a federalist state-by-state approach will yield the best result. People in Massachusetts and California can be the first, and when other states see that the world doesn't end, they can follow suit. The transitional period will be rough--you might not be married while you're on vacation, for instance--but ultimately gay marriage will be a reality. Further, the alleged defenders of the family know this. They are not afraid that a state-by-state approach will fail; rather, they are afraid that it will succeed. This is where the support comes from for the amendment.

The most pragmatic, actually workable options generally come from moderates. Rauch's suggestions are no exception, and while they may not get us to the Promised Land, they are still better than our current system. Jonathan Rauch, if you read this, keep up the good work.

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"Marriage can be a universal

"Marriage can be a universal and thus the norm for serious couples, or it can be exclusive and thus only one of several competing norms for serious couples."

Couples?

"At a time when marriage needs all the support and participation it can get,..."

Whose marriage? Not mine.

"...homosexuals are pleading to move beyond cohabitation."

"Thirty years I've been asking permission to piss. I can't squeeze a drop without say-so. There is a harsh truth to face. No way I'm gonna make it on the outside." - The Shawshank Redemption

Anyone who needs permission to "move beyond cohabitation" isn't marriage material in my book.

JTK, Marriage is not merely

JTK,

Marriage is not merely a government institution - it is a social institution as well. I was at the Rauch speech and one of the things he mentioned repeatedly was the difference between the legal aspects of marriage and the social aspects of marriage. Our current society (separate from the state) places more importance on the relationship of those who are married than those who are not. More is expected of married couples than cohabitating couples; there are social pressures to remain together that are not necessarily present for unmarried couples.

Whether you think these social aspects are important or necessary is irrelevent to the question of how they exist now and why this social benefit and responsibility should be extended to homosexuals. There is nothing statist about marriage in its social sense, and in fact, the expectation that couples remain committed to each other through thick and through thin is arguably an important element of social cohesion.

I just knew you'd have

I just knew you'd have something to say, John. Micha said what needs to be said already, but I'll add...

Leave the dogmatism at No Treason, please. Until the inexorable march of history brings us to paradise, we're stuck with people who aren't anarchists or individualists or even curmudgeons. They're out there and they're not going away any time soon. We don't have the numbers to work without them.

Leaving aside the "utopian"

Leaving aside the "utopian" solution of abolishing all government interference in marriage, it occurs to me that civil marriage is essentially a form of social engineering. That is, it uses legal sticks and carrots to encourage certain kinds of behavior. Isn't the extension of such social engineering something that even non-"dogmatic," non-utopian libertarians should oppose?

"Marriage is not merely a

"Marriage is not merely a government institution..."

Thanks for reminding me. My marriage is independent of the state.

"I was at the Rauch speech and one of the things he mentioned repeatedly was the difference between the legal aspects of marriage and the social aspects of marriage. Our current society (separate from the state) places more importance on the relationship of those who are married than those who are not. More is expected of married couples than cohabitating couples; there are social pressures to remain together that are not necessarily present for unmarried couples."

Swell.

"Whether you think these social aspects are important or necessary is irrelevent to the question of how they exist now and why this social benefit and responsibility should be extended to homosexuals."

I'm an individual, and as such I am not equipped to extend "social benefits". If a gay couple tells me they're married I respect that. They don't need to show me they've been government certified. If they make a poor marriage I think less of them, if they make a good marriage I think better of them. That's no social benefit, that's me exercising my judgement. Now what?

"There is nothing statist about marriage in its social sense, and in fact, the expectation that couples remain committed to each other through thick and through thin is arguably an important element of social cohesion."

And here it sounded to me like Rauch was advocating expanding a state benefit and involving the state more deeply in the intimate personal affairs of many individuals....

I don't consider JTK's view

I don't consider JTK's view either dogmatic or utopian. The question to ask in these "second-best world" issues - state-sanctioned gay marriage, private accounts for social security, school vouchers - is whether or not the result will bring us closer to the ideal sometime down the road.

I'm not sure state-sanctioned gay marriage does that.

Why doesn't Rauch simply

Why doesn't Rauch simply marry his lover?

'If I hear not allowed much oftener,' said Sam, 'I'm going to get angry.' - Samwise Gamgee, upon observing the prevalence of institutionalized hobbits.

Lee, It seems to me your

Lee,

It seems to me your question is akin to the conservative (and sometimes libertarian) objection to judicial activism. But activism itself is not good or bad; it depends on whether the judicial activity moves us closer to constitutionality (or liberty, depending on your opinion of constitutional legitimacy) or away from it. So too with social engineering. The current inequities in marriage are already a form of social engineering which discourage homosexuality and give people the idea that homosexuals are only interested in sex and not long term relationships. Removing that inequity may be a form of social engineering, but I believe it is a just return to what should be the status quo (and would be in the absence of the state).

JTK,

Yes, you are an individual, and no, you are not equipped to extend social benefits. But you and I are an anomoly - most people do consider contractual marriage to be a committment more than a simple willingness to live together. When Rauch began his speech, he discussed the mountains of social science research establishing a link between marriage and wealth, longevity, duration of relationship, psychological health, and other desirable benefits. These effects are clearly a result of societal benefits, real or imagined, percieved by the married couple themselves (some of it may be a result of contractual effects as well).

Jonathan,

I'm not sure it does either. But I am not comfortable using gay people as a means to achieve some other socially desirable end. I don't think gay people should be denied equal rights just so people will be more inclined to consider the stateless option.

There were two older men at the bookstore last night, both of whom were in their mid-70's. They had been "married" for over 50 years. And yet they understood the political reality of the situation and realized that even if things go as the gay rights movement hopes for, chances are they will not have an opportunity to marry within their lifetimes. In my mind, whether you think extending marriage to homosexuals will strengthen or weaken the government's role in the institution, at a certain point you just have to look at and sympathize with the people who are suffering from this unequal treatment under the law.

"There were two older men at

"There were two older men at the bookstore last night, both of whom were in their mid-70?s. They had been ?married? for over 50 years. And yet they understood the political reality of the situation and realized that even if things go as the gay rights movement hopes for, chances are they will not have an opportunity to marry within their lifetimes. In my mind, whether you think extending marriage to homosexuals will strengthen or weaken the government?s role in the institution, at a certain point you just have to look at and sympathize with the people who are suffering from this unequal treatment under the law."

Are they married or not, Micha? If they are married then isn't it condescending to them and to other married gays to use scare quotes in calling them "married"?

If they're not married, then why not? And why should the unwillingness of the state to certify them be a cause of suffering?

Micha, good points. You

Micha, good points. You wrote:

The current inequities in marriage are already a form of social engineering which discourage homosexuality and give people the idea that homosexuals are only interested in sex and not long term relationships. Removing that inequity may be a form of social engineering, but I believe it is a just return to what should be the status quo (and would be in the absence of the state).

First off, I'm not at all sure that traditional marriage and same-sex marriage would enjoy "equality" in the absence of state intervention. Equality in what respect, for starters? Social esteem? Economic advantage? We tend to forget that there's a reason most (all?) societies have provided special consideration and support to traditional marriage, namely its role in the begetting and rearing of children. This didn't originate with state intervention.

Moreover, I would question your claim that same-sex marriage should serve certain purposes, such as teaching people lessons about gay people's character. Isn't one of the essential "Hayekian"/libertarian insights that institutions evolve to meet human needs? How can we say in advance what form(s) same-sex marriage should take and what its purpose should be, much less enforce such an understanding via government action? It seems entirely possible to me that same-sex marriage could evolve in entirely different directions from traditional marriage.

Lee, a few points We tend to

Lee, a few points

We tend to forget that there?s a reason most (all?) societies have provided special consideration and support to traditional marriage, namely its role in the begetting and rearing of children. This didn?t originate with state intervention.
true, but equality is recognized as a mitigating factor in such reasoning: i.e. we don't prevent post-menopausal women from getting married.

This is an issue that seems so incredibly obvious to that I hardly spend time arguing about it. The only good dissenting opinion I've ever heard is that the state could still grant benefits to civil unions and say absolutely nothing about married. Then you could get "unionized" and "Southern Baptist Married" if you wanted to (which preserves the rights of certain religions to exclude gays) yet gays could still be equally "unionized" and married by a more accepting church.

If they?re not married, then

If they?re not married, then why not? And why should the unwillingness of the state to certify them be a cause of suffering?

It shouldn't, but it does. And that's not going to change, especially since (according to the Kennedy plan) we aren't supposed to be trying to change peoples' minds anyway.

As I said already John, most people aren't anarchists. And even if they were and simply considered themselves married (bought some rings, etc, which I think they should do anyway) the hospital wouldn't buy it when one of them went into the ER at the end of his life--the other would have to stay outside. There are legal aspects that the state would deny them even if they considered themselves husband and husband. This is what they want to change.

"It shouldn't, but it

"It shouldn't, but it does."

The fact that people are suffering from something that shouldn't bother them can't be a legitimate reason for expanding a state benefit program, can it?

I was pointing out that

I was pointing out that we're not dealing with anarchists. By definition, the solution they come up with will be less-than-perfect, as it will still involve state involvement in some way. They don't see the lack of state involvement as a blessing. Wills are more easily contested by family members, emergency visits are denied, etc. because of this lack, and until all marriage is free from government and hence these situations are different (such that gay relationships are not discriminated against), it will be cold comfort for them to know that at least they have a free relationship. The perfect solution will have to be phased in; in the meantime, I don't see how the current inequality can be justified, nor can I see how using people as means can be justified.

Leaving aside the

Leaving aside the “utopian” solution of abolishing all government interference in marriage, it occurs to me that civil marriage is essentially a form of social engineering. That is, it uses legal sticks and carrots to encourage certain kinds of behavior. Isn’t the extension of such social engineering something that even non-“dogmatic,” non-utopian libertarians should oppose?

Actually, the social engineering is already in place: homosexuals are not encouraged by the state to be in long-term relationships and heterosexuals are. Should marriage be extended to gays, we won't have more social engineering but different social engineering. If you're looking for outcomes, the question is which of the two is preferable.

Me, personally, I think the state ought to remove marriage benefits and change itself to enforcing private marriage contracts on its way out of existence (the state, that is). Sadly, this isn't happening.

- JOsh

"Wills are more easily

"Wills are more easily contested by family members, emergency visits are denied, etc. because of this lack,..."

There's a bit of a bait-and-switch going on here.

"My will is being contested" and "My emergency vist was denied" are not at all the same complaint as "I can't get married", nor does it follow at all that expansion of the legal institution of marriage is a legitimate remedy for the first two complaints.

The complaint is actually

The complaint is actually "My emergency visit was denied because I can't get married." There are two solutions which recognize legal equality: either gays get the same privileges and responsibilities that straights have, with respect to the state, or the state doesn't give anybody privileges and responsibilities. The second one is ideal, but not going to happen any time soon. The next best arrangement is to equalize the field legally so as not to give gays the bad end of the deal.

Is the inequality before the law worth it, in your eyes, as a strategy to force the government out of marriage? Not only does that seem like a bad gamble, but these are peoples' lives being affected in the meantime.

John, in Law they call these

John, in Law they call these situations "Partial Compliance Issues" and (as in economics) steps that seem to move you toward absolute justice can actually increase injustice. This is unfair unless we can go to full justice immediately.

That said, the relevant question is:
a. will the institution of gay marriage affect the ability of liberal political movements to get marriage abolished at a later date?

To this the answer seems clearly no. Even if there was a marginal impact that would probably be outweighed by all the benefits (enumerated by Randall and others.

Won't it lead to the

Won't it lead to the expansion of unjust legal anti-discrimination "protections" in the private sector?

"The complaint is actually

"The complaint is actually ?My emergency visit was denied because I can?t get married.?"

That may be how it was framed, but the visit could have been allowed without the state certified marriage. Further, even a state certified a gay spouse may still find him/herself unjustly denied visitition to someone - a non-family member, for instance.

Matt, How about this

Matt,

How about this question: Will the expansion of state marriage to include gays put a gun to anyone's head?

Granted the state is always putting a gun to someone's head, but won't some people be forced to do things they would not willingly do?

How about this question:

How about this question: Will the expansion of state marriage to include gays put a gun to anyone?s head?
hmmm... I'm not following. The person who grants the liscence, or something? I really can't think of how- certainly the state won't be requiring all churches to allow Gay Marriages. I don't support that. Otherwise, I can't think think of anything serious.

I continue my argument here.

I continue my argument here.

I don't think the point you

I don't think the point you raise is very significant anyway- this seems like marginal phenomena- but as for the effects on the private sector, I don't think their worthy of concern. This country club isn't allowed to discriminate because it's considered significantly public under the law. That seems pretty reasonable to me.

"Significantly

"Significantly public"?

Perhaps this is some new kind of libertarianism I wasn't prviously aware of.

At what point do the owners and operators of a business lose their right to run it as they see fit?

I think your comment does illustrate how those wielding the state will balance the rights and interests of one group against another: Figure out who's more "marginal" - and screw 'em.

I'm not a libertarian, but I

I'm not a libertarian, but I was paraphrasing the supremem court's attitude toward such things. The boy scouts are considered Private enough to discriminate, but WalMart was ruled public enough to have to sell RU-486. It seems fairly reasonable to me- some private institutions are sufficiently meaningful that they need to have guaranteed "social welfare" effects.

Clearly the owner has rights to make decisions- but rather than take the easy libertarian way out (that of just assuming such rights are absolute), many political thinkers opt to try and strike a balance between the right of a WalMart executive to decide things and that of a poor woman. That seems emminently rational to me.

How do you propose to strike

How do you propose to strike such a balance? What entitles you to do so?

I think the idea in Law is

I think the idea in Law is not that I do it, but that a jury can, or a functioning democratic government can (to a more limited extent.) It's difficult to explain what "hot" is, or what "yellow" is, but that's no reason to presume they don't exist. I think the attitude is basically that public/private distinction is not an easy one to make, but an important one. The judicial method is a way of using the intuitions.

There?s a bit of a

There?s a bit of a bait-and-switch going on here. ?My will is being contested? and ?My emergency vist was denied? are not at all the same complaint as ?I can?t get married?, nor does it follow at all that expansion of the legal institution of marriage is a legitimate remedy for the first two complaints.

It's no more of a bait-and-switch to lump marriage together with all of its various benefits as it is to lump marriage together with all of its various costs. Is it a bait-and-switch for you to lump the legal institution of marriage with anti-discrimination laws which violate freedom of association? Does it follow that opposition to the expansion of the legal institution of marriage is a legitimate remedy for your complaint against anti-discrimination laws?

And as Matt said, he is not a libertarian. But he one of the most reasonable socialists I have met, and he provides a good foil to this argument. I have strong libertarian intuitions that it is wrong to force the owners of Wal-Mart to sell something they do not want to sell. Matt does not share my libertarian intuitions, and I have no way of communicating with Matt on libertarian grounds. However, both Matt and I share similar intuitions about what constitutes desirable consequences, so we may be able to communicate with each other on consequentialist grounds.

Granted, it is much easier to argue against anti-discrimination laws based on simple libertarian principles than on the undesirable and unintended consequences of these laws. David Bernstein spends an entire book focusing on the harmful effects anti-discrimination laws can have on free speech.