Horwitz on Goldberg on Hayek and Same-Sex Marriage

Even though I promised to stop addressing Jonathan's argument directly, I want to get one more entry in on the same-sex marriage issue. Some of you might have seen this piece by Jonah Goldberg over at NRO that offered a critique of Jonathan Rauch's Hayekian case for same-sex marriage (SSM). Thanks to some previous correspondence with Jonah over this issue, he had asked me for my thoughts on his piece. I reprint those below. They are in the form of an email to Jonah, with some minor editing since:

In any case, here's a few thoughts. I think you have indeed hit on a key question for Hayekians - how fast should that "correction" process of unjust laws take place given that institutions have to be rooted in actual human practices and that such institutions have, themselves, often emerged over many generations? How do we balance the claims of justice against the potential social discoordination that a change in an institution might provoke? (Note that this parallels "liberty vs order" debate that runs through so much of the libertarian/conservative divide.) All of these are very good questions, and the answers to them can probably not be found "a priori" and may well differ from case to case.

But that's not my big problem with your argument. I want to challenge a core premise, namely that same-sex marriage reflects a revolutionary change in the institution of marriage. Whether ones sees the change as revolutionary or evolutionary may well depend on whether one is focusing on the form of marriage or the functions. Like many conservatives, your argument is, at least implicitly, focused on the form in arguing that we are so fundamentally changing the institution that it's likely to cause major social confusion and discoordination (e.g., your traffic light analogy, which I will return to). What I would argue is that the functions of marriage and the family are what really matter, and that changing the form that marriage can take need not (and would not in the case of SSM) fundamentally alter what marriage is for and what it/the family does. (Rauch's chapter on "What is Marriage For?" is excellent in just this way).

Over human history, the forms and functions of the family have changed as other social institutions have changed - in our own time, often within a generation. In previous years we've gone from women as chattel to women as full partners (thanks to capitalism and the rule of law/contract, I would argue) and now to single parenthood. I'm not arguing that all form changes are function-neutral, but the question should be "how do they affect the function?" Too many conservatives start making arguments about how marriage/the family has "been" or "done" <insert family form or function here> "for centuries." It's simply not true in most cases. The idealized vision of the family implicit in much conservative rhetoric is a peculiarly modern, industrial revolution and later phenomenon. Marriage and the family have evolved in crucial ways in both form and function throughout human history, sometimes in small steps, sometimes large. (Imagine, for example, the momentousness of the notion that women were no longer men's property.)

Anyway, my point is that SSM is much more about a change in form than in function. Changes in form are much easier for people to adjust to than changes in function. For example, if we suddenly went all Plato and decided to collectivize child-raising, then your argument about going slow would make more sense (obviously, I'm not arguing that such a change would be good), because it was a fundamental change in what the institution does. SSM is about who can be married, not what being married means or what marriages and families do. Institutions are about functions. Yes, function and form can be related (i.e., different forms might function better or worse under one set of circumstances or another), and they have been with families, so it's an empirical question about whether or not SSM would really affect functioning. I should note that for Hayek, it was the function of institutions that mattered. The whole point of the Hayekian argument is that institutions do things that we sometimes can't fully comprehend.

And the form/function distinction is why the analogy to Loving v. Virginia is in play. I don't find the simliarities to be about "civil rights" per se, although that's important, but that both interracial and same-sex marriage are about the who not the what of marriage. They are changes in the form that marriages/families can take but not about their functions. Given that form changes are easier to digest, it would make sense in such cases that the law can be more ahead of public opinion. As SSM advocates note, Gallup polls two years before Loving showed 42% of Northern whites and 72% of Southern whites thinking interracial marriage should be outlawed. The comparable number from January 2004 on SSM is 55% thinking it should be illegal, with 38% thinking it should be put in the Constitution as illegal. Seems to me those numbers are in the same ballpark, and perhaps even suggesting more social acceptance of SSM than interracial marriage in the 60s. Combine my argument that this is not a revolutionary change, but part of an ongoing evolution in the form that marriage and family take, not in their function, with the fact that the public is no less and perhaps more accepting of this change than they were of interracial marriage in the 60s, and the argument for going slow disappears. (Either that or you're going to have to say Loving was premature, which is hard to argue given the lack of social confusion and upheaval it brought in its wake.)

This is also where the traffic light analogy breaks down. Traffic lights have evolved too. If you watch old films or newsreels (or, like me, The Three Stooges) you'll note that the earliest signals simply had two wood or metal signs saying "stop" and "go" that flipped down at the right time. And other early ones just had red and green. In both cases, there was no equivalent to yellow. Later on, the third color was added, specifically when the automobile became more common and faster. The form of the yellow was unnecessary if traffic was sufficiently low and low-risk. When the context in which traffic lights operated changed, the form needed to change so that the functions could be applied to the new context. I would argue that this is a reasonable analogy to where we find ourselves with marriage - a new context of social acceptance of homosexuality leading to a change in form that allows the functions to be applied to a new context.

(Just to show that even the red and green were likely not arbirtrary, my psychologist teaching partner Cathy Crosby-Currie noted to me that: "the colors red and green may have been chosen due to the strong ability of the human eye to detect red and green wavelengths which are also opponents of each other, i.e., neurons which are excited by red are inhibited by green and vice versa.")

Did this fundamentally alter the "institution" of the traffic light? I'd say no. Did it require some social adjustment? Sure we all had to understand what yellow meant and how long it would stay on etc.. I"m sure there were some problems when they were first used, but nothing major. The addition of "yellow" to the signalling function of traffic lights allowed more information to be available to users, which, if anything, enhanced its functioning as an institution by better aligning with how people wished to use it. To me, SSM is like adding yellow to the red/green system. It brings something in and widens (and perhaps improves, if you take the justice argument seriously) the institution without undermining its functioning. It simply applies the functions of marriage to a new context. It's evolutionary not revolutionary, thus it doesn't require generations.

Of course, many conservatives, especially of the religious sort, might not care about functions and just say "God/Nature said man and woman." But for a Hayekian, who sees institutions as evolving because they perform certain functions that enhanced the ability of a society to survive socially, function is the question at hand. I'm convinced by the social scientific evidence about homosexuality and same-sex couples parenting that SSM will do no damage to the social fabric, and might even improve it by creating more loving homes for children.

Even Hayek understood that sometimes the judge or the legislator can see, at the system level, contradictions, inconsistencies, or injustices that can be remedied in ways that don't completely reconstruct institutions and that do bring them more in line with the fundamental principles of the society and the underlying function of the institutions. That to me is what SSM is about. It is not a chaos-inducing change in the signals associated with a social institution, rather it is an evolutionary change in an institution that applies its functions to a different form.