A Libertarian View of Gay Marriage

A Libertarian View

If this were an essay on economics, it would be the best essay on economics I’ve read in a year or more.

If this were an essay on social structures, it would be the best essay on social structures I’ve read on a year or more.

If this were an essay on conservative versus reformer mindsets, it would be the best essay on *that* that I’ve read in a year or more.

In fact, it was all three of those things, and I’m frankly stunned at how excellently you’ve made so many points in such a short space.

Bravo.

From the desk of Jane Galt:

A really, really, really long post about gay marriage that does not, in the end, support one side or the other

Unlike most libertarians, I don’t have an opinion on gay marriage, and I’m not going to have an opinion no matter how much you bait me. However, I had an interesting discussion last night with another libertarian about it, which devolved into an argument about a certain kind of liberal/libertarian argument about gay marriage that I find really unconvincing.

Social conservatives of a more moderate stripe are essentially saying that marriage is an ancient institution, which has been carefully selected for throughout human history. It is a bedrock of our society; if it is destroyed, we will all be much worse off. (See what happened to the inner cities between 1960 and 1990 if you do not believe this.) For some reason, marriage always and everywhere, in every culture we know about, is between a man and a woman; this seems to be an important feature of the institution. We should not go mucking around and changing this extremely important institution, because if we make a bad change, the institution will fall apart.

A very common response to this is essentially to mock this as ridiculous. “Why on earth would it make any difference to me whether gay people are getting married? Why would that change my behavior as a heterosexual”

To which social conservatives reply that 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.

To which, again, the other side replies “That’s ridiculous! I would never change my willingness to get married based on whether or not gay people were getting married!”

Now, economists hear this sort of argument all the time. “That’s ridiculous! I would never start working fewer hours because my taxes went up!” This ignores the fact that you may not be the marginal case. The marginal case may be some consultant who just can’t justify sacrificing valuable leisure for a new project when he’s only making 60 cents on the dollar. The result will nonetheless be the same: less economic activity. Similarly, you–highly educated, firmly socialized, upper middle class you–may not be the marginal marriage candidate; it may be some high school dropout in Tuscaloosa. That doesn’t mean that the institution of marriage won’t be weakened in America just the same.

This should not be taken as an endorsement of the idea that gay marriage will weaken the current institution. I can tell a plausible story where it does; I can tell a plausible story where it doesn’t. I have no idea which one is true. That is why I have no opinion on gay marriage, and am not planning to develop one. Marriage is a big institution; too big for me to feel I have a successful handle on it.

However, I am bothered by this specific argument, which I have heard over and over from the people I know who favor gay marriage laws. I mean, literally over and over; when they get into arguments, they just repeat it, again and again. “I will get married even if marriage is expanded to include gay people; I cannot imagine anyone up and deciding not to get married because gay people are getting married; therefore, the whole idea is ridiculous and bigoted.”

They may well be right. Nonetheless, libertarians should know better. The limits of your imagination are not the limits of reality. Every government programme that libertarians have argued against has been defended at its inception with exactly this argument.

Let me take three major legal innovations, one of them general, two specific to marriage.

The first, the general one, is well known to most hard-core libertarians, but let me reprise it anyway. When the income tax was initially being debated, there was a suggestion to put in a mandatory cap; I believe the level was 10 percent.

Don’t be ridiculous, the Senator’s colleagues told him. Americans would never allow an income tax rate as high as ten percent. They would revolt! It is an outrage to even suggest it!

Many actually fought the cap on the grounds that it would encourage taxes to grow too high, towards the cap. The American people, they asserted, could be well counted on to keep income taxes in the range of a few percentage points.

Oops.

Now, I’m not a tax-crazy libertarian; I don’t expect you to be horrified that we have income taxes higher than ten percent, as I’m not. But the point is that the Senators were completely right–at that time. However, the existence of the income tax allowed for a slow creep that eroded the American resistance to income taxation. External changes–from the Great Depression, to the technical ability to manage withholding rather than lump payments, also facilitated the rise, but they could not have without a cultural sea change in feelings about taxation. That “ridiculous” cap would have done a much, much better job holding down tax rates than the culture these Senators erroneously relied upon. Changing the law can, and does, change the culture of the thing regulated.

Another example is welfare. To sketch a brief history of welfare, it emerged in the nineteenth century as “Widows and orphans pensions”, which were paid by the state to destitute families whose breadwinner had passed away. They were often not available to blacks; they were never available to unwed mothers. Though public services expanded in the first half of the twentieth century, that mentality was very much the same: public services were about supporting unfortunate families, not unwed mothers. Unwed mothers could not, in most cases, obtain welfare; they were not allowed in public housing (which was supposed to be–and was–a way station for young, struggling families on the way to home ownership, not a permanent abode); they were otherwise discriminated against by social services. The help you could expect from society was a home for wayward girls, in which you would give birth and then put the baby up for adoption.

The description of public housing in the fifties is shocking to anyone who’s spent any time in modern public housing. Big item on the agenda at the tenant’s meeting: housewives, don’t shake your dustcloths out of the windows–other wives don’t want your dirt in their apartment! Men, if you wear heavy work boots, please don’t walk on the lawns until you can change into lighter shoes, as it damages the grass! (Descriptions taken from the invaluable book, The Inheritance, about the transition of the white working class from Democrat to Republican.) Needless to say, if those same housing projects could today find a majority of tenants who reliably dusted, or worked, they would be thrilled.

Public housing was, in short, a place full of functioning families.

Now, in the late fifties, a debate began over whether to extend benefits to the unmarried. It was unfair to stigmatise unwed mothers. Why shouldn’t they be able to avail themselves of the benefits available to other citizens? The brutal societal prejudice against illegitimacy was old fashioned, bigoted, irrational.

But if you give unmarried mothers money, said the critics, you will get more unmarried mothers.

Ridiculous, said the proponents of the change. Being an unmarried mother is a brutal, thankless task. What kind of idiot would have a baby out of wedlock just because the state was willing to give her paltry welfare benefits?

People do all sorts of idiotic things, said the critics. If you pay for something, you usually get more of it.

C’mon said the activists. That’s just silly. I just can’t imagine anyone deciding to get pregnant out of wedlock simply because there are welfare benefits available.

Oooops.

Of course, change didn’t happen overnight. But the marginal cases did have children out of wedlock, which made it more acceptable for the next marginal case to do so. Meanwhile, women who wanted to get married essentially found themselves in competition for young men with women who were willing to have sex, and bear children, without forcing the men to take any responsibility. This is a pretty attractive proposition for most young men. So despite the fact that the sixties brought us the biggest advance in birth control ever, illegitimacy exploded. In the early 1960s, a black illegitimacy rate of roughly 25 percent caused Daniel Patrick Moynihan to write a tract warning of a crisis in “the negro family” (a tract for which he was eviscerated by many of those selfsame activists.)

By 1990, that rate was over 70 percent. This, despite the fact that the inner city, where the illegitimacy problem was biggest, only accounts for a fraction of the black population.

But in that inner city, marriage had been destroyed. It had literally ceased to exist in any meaningful way. Possibly one of the most moving moments in Jason de Parle’s absolutely wonderful book, American Dream, which follows three welfare mothers through welfare reform, is when he reveals that none of these three women, all in their late thirties, had ever been to a wedding.

Marriage matters. It is better for the kids; it is better for the adults raising those kids; and it is better for the childless people in the communities where those kids and adults live. Marriage reduces poverty, improves kids outcomes in all measurable ways, makes men live longer and both spouses happier. Marriage, it turns out, is an incredibly important institution. It also turns out to be a lot more fragile than we thought back then. It looked, to those extremely smart and well-meaning welfare reformers, practically unshakable; the idea that it could be undone by something as simple as enabling women to have children without husbands, seemed ludicrous. Its cultural underpinnings were far too firm. Why would a woman choose such a hard road? It seemed self-evident that the only unwed mothers claiming benefits would be the ones pushed there by terrible circumstance.

This argument is compelling and logical. I would never become an unwed welfare mother, even if benefits were a great deal higher than they are now. It seems crazy to even suggest that one would bear a child out of wedlock for $567 a month. Indeed, to this day, I find the reformist side much more persuasive than the conservative side, except for one thing, which is that the conservatives turned out to be right. In fact, they turned out to be even more right than they suspected; they were predicting upticks in illegitimacy that were much more modest than what actually occurred–they expected marriage rates to suffer, not collapse.

How did people go so badly wrong? Well, to start with, they fell into the basic fallacy that economists are so well acquainted with: they thought about themselves instead of the marginal case. For another, they completely failed to realize that each additional illegitimate birth would, in effect, slightly destigmatise the next one. They assigned men very little agency, failing to predict that women willing to forgo marriage would essentially become unwelcome competition for women who weren’t, and that as the numbers changed, that competition might push the marriage market towards unwelcome outcomes. They failed to foresee the confounding effect that the birth control pill would have on sexual mores.

But I think the core problems are two. The first is that they looked only at individuals, and took institutions as a given. That is, they looked at all the cultural pressure to marry, and assumed that that would be a countervailing force powerful enough to overcome the new financial incentives for out-of-wedlock births. They failed to see the institution as dynamic. It wasn’t a simple matter of two forces: cultural pressure to marry, financial freedom not to, arrayed against each other; those forces had a complex interplay, and when you changed one, you changed the other.

The second is that they didn’t assign any cultural reason for, or value to, the stigma on illegitimacy. They saw it as an outmoded vestige of a repressive Victorial values system, based on an unnatural fear of sexuality. But the stigma attached to unwed motherhood has quite logical, and important, foundations: having a child without a husband is bad for children, and bad for mothers, and thus bad for the rest of us. So our culture made it very costly for the mother to do. Lower the cost, and you raise the incidence. As an economist would say, incentives matter.

(Now, I am not arguing in favor of stigmatizing unwed mothers the way the Victorians did. I’m just pointing out that the stigma did not exist merely, as many mid-century reformers seem to have believed, because of some dark Freudian excesses on the part of our ancestors.)

But all the reformers saw was the terrible pain–and it was terrible–inflicted on unwed mothers. They saw the terrible unfairness–and it was terribly unfair–of punishing the mother, and not the father. They saw the inherent injustice–and need I add, it was indeed unjust–of treating American citizens differently because of their marital status.

But as G.K. Chesterton points out, people who don’t see the use of a social institution are the last people who should be allowed to reform it:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

Now, of course, this can turn into a sort of precautionary principle that prevents reform from ever happening. That would be bad; all sorts of things need changing all the time, because society and our environment change. But as a matter of principle, it is probably a bad idea to let someone go mucking around with social arrangements, such as the way we treat unwed parenthood, if their idea about that institution is that “it just growed”. You don’t have to be a rock-ribbed conservative to recognize that there is something of an evolutionary process in society: institutional features are not necessarily the best possible arrangement, but they have been selected for a certain amount of fitness.

It might also be, of course, that the feature is what evolutionary biologists call a spandrel. It’s a term taken from architecture; spandrels are the pretty little spaces between vaulted arches. They are not designed for; they are a useless, but pretty, side effect of the physical properties of arches. In evolutionary biology, spandrel is some feature which is not selected for, but appears as a byproduct of other traits that are selected for. Belly buttons are a neat place to put piercings, but they’re not there because of that; they’re a byproduct of mammalian reproduction.

However, and architect will be happy to tell you that if you try to rip out the spandrel, you might easily bring down the building.

The third example I’ll give is of changes to the marriage laws, specifically the radical relaxation of divorce statutes during the twentieth century.

Divorce, in the nineteenth century, was unbelievably hard to get. It took years, was expensive, and required proving that your spouse had abandoned you for an extended period with no financial support; was (if male) not merely discreetly dallying but flagrantly carrying on; or was not just belting you one now and again when you got mouthy, but routinely pummeling you within an inch of your life. After you got divorced, you were a pariah in all but the largest cities. If you were a desperately wronged woman you might change your name, taking your maiden name as your first name and continuing to use your husband’s last name to indicate that you expected to continue living as if you were married (i.e. chastely) and expect to have some limited intercourse with your neighbors, though of course you would not be invited to events held in a church, or evening affairs. Financially secure women generally (I am not making this up) moved to Europe; Edith Wharton, who moved to Paris when she got divorced, wrote moving stories about the way divorced women were shunned at home. Men, meanwhile (who were usually the respondents) could expect to see more than half their assets and income settled on their spouse and children.

There were, critics observed, a number of unhappy marriages in which people stuck together. Young people, who shouldn’t have gotten married; older people, whose spouses were not physically abusive nor absent, nor flagrantly adulterous, but whose spouse was, for reasons of financial irresponsibility, mental viciousness, or some other major flaw, destroying their life. Why not make divorce easier to get? Rather than requiring people to show that there was an unforgivable, physically visible, cause that the marriage should be dissolved, why not let people who wanted to get divorced agree to do so?

Because if you make divorce easier, said the critics, you will get much more of it, and divorce is bad for society.

That’s ridiculous! said the reformers. (Can we sing it all together now?) People stay married because marriage is a bedrock institution of our society, not because of some law! The only people who get divorced will be people who have terrible problems! A few percentage points at most!

Oops. 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.

There were actually two big changes; the first, when divorce laws were amended in most states to make it easier to get a divorce; and the second, when “no fault” divorce allowed one spouse to unilaterally end the marriage. The second change produced another huge surge in the divorce rate, and a nice decline in the incomes of divorced women; it seems advocates had failed to anticipate that removing the leverage of the financially weaker party to hold out for a good settlement would result in men keeping more of their earnings to themselves.

What’s more, easy divorce didn’t only change the divorce rate; it made drastic changes to the institution of marriage itself. David Brooks makes an argument I find convincing: that the proliferation of the kind of extravagant weddings that used to only be the province of high society (rented venue, extravagant flowers and food, hundreds of guests, a band with dancing, dresses that cost the same as a good used car) is because the event itself doesn’t mean nearly as much as it used to, so we have to turn it into a three-ring circus to feel like we’re really doing something.

A couple in 1940 (and even more so in 1910) could go to a minister’s parlor, or a justice of the peace, and in five minutes totally change their lives. Unless you are a member of certain highly religious subcultures, this is simply no longer true. That is, of course, partly because of the sexual revolution and the emancipation of women; but it is also because you aren’t really making a lifetime commitment; you’re making a lifetime commitment unless you find something better to do. There is no way, psychologically, to make the latter as big an event as the former, and when you lost that commitment, you lose, on the margin, some willingness to make the marriage work. Again, this doesn’t mean I think divorce law should be toughened up; only that changes in law that affect marriage affect the cultural institution, not just the legal practice.

Three laws. Three well-meaning reformers who were genuinely, sincerely incapable of imagining that their changes would wreak such institutional havoc. Three sets of utterly logical and convincing, and wrong arguments about how people would behave after a major change.

So what does this mean? That we shouldn’t enact gay marriage because of some sort of social Precautionary Principle

No. I have no such grand advice.

My only request is that people try to be a leeetle more humble about their ability to imagine the subtle results of big policy changes. The argument that gay marriage will not change the institution of marriage because you can’t imagine it changing your personal reaction is pretty arrogant. It imagines, first of all, that your behavior is a guide for the behavior of everyone else in society, when in fact, as you may have noticed, all sorts of different people react to all sorts of different things in all sorts of different ways, which is why we have to have elections and stuff. And second, the unwavering belief that the only reason that marriage, always and everywhere, is a male-female institution (I exclude rare ritual behaviors), is just some sort of bizarre historical coincidence, and that you know better, needs examining. If you think you know why marriage is male-female, and why that’s either outdated because of all the ways in which reproduction has lately changed, or was a bad reason to start with, then you are in a good place to advocate reform. If you think that marriage is just that way because our ancestors were all a bunch of repressed bastards with dark Freudian complexes that made them homophobic bigots, I’m a little leery of letting you muck around with it.

Is this post going to convince anyone? I doubt it; everyone but me seems to already know all the answers, so why listen to such a hedging, doubting bore? I myself am trying to draw a very fine line between being humble about making big changes to big social institutions, and telling people (which I am not trying to do) that they can’t make those changes because other people have been wrong in the past. In the end, our judgment is all we have; everyone will have to rely on their judgment of whether gay marriage is, on net, a good or a bad idea. All I’m asking for is for people to think more deeply than a quick consultation of their imaginations to make that decision. I realize that this probably falls on the side of supporting the anti-gay-marriage forces, and I’m sorry, but I can’t help that. This humility is what I want from liberals when approaching market changes; now I’m asking it from my side too, in approaching social ones. I think the approach is consistent, if not exactly popular.

A quick extra note on gay marriage

There are a lot of libertarians who dismiss arguments about gay marriage with the declaration that the state shouldn’t be in the business of sanctifying marriage anyway. I don’t find that a particularly satisfying argument. It’s quite possibly true that in some ideal libertarian state, the government would not be in the business of defining marriages, or would merely enforce whatever creative contracts people chose to draw up. That’s a lovely discussion for a libertarian forum. However, we are confronting a major legal change that is actually happening in the country we live in, where marriage is, and will continue to be for the foreseeable future, an institution in which the government is intimately involved. While I’m happy to debate about whether or not the state should define the form of marriage in my libertarian utopia, I don’t think that this is necessarily a good guide to the kinds of laws I want to see enacted in America, which in so many, many ways does not look like my utopia.

For example, in my libertarian utopia, there would be no social security. People would save for their own retirements; social insurance would be for people who had something actually unpredictable and unexpected happen to them.If there is anything more predictable than aging, I don’t want to run into it.

Does that mean that I would advocate, say, getting rid of Social Security today? Shut down the administration, turn off the check-writing machines, and tell our senior citizens to get a goddamn job?

Don’t be ridiculous. People planned their lives around this government assurance; you can’t just rip it away and let millions of people starve. You can’t just import one aspect of my libertarian utopia–no social security–without the crucial things that underpin it, like a population that knows it’s expected to save for its own retirement. Similarly, you can’t just import one feature of anarcho-capitalist life–anyone can marry anyone they want–as if all the vast social changes that an anarcho-capitalist or minarchist system would represent, are already there.

Update: A number of libertarians are, as I predicted, making the “Why don’t we just privatize marriage?” argument. I don’t find that useful in the context of the debate about gay marriage in America, where marriage is simply not going to be privatized in any foreseeable near-term future.

Also, a lot of readers are saying that I’m wrong about marriage always being between a man and a woman, citing polygamy. I have been told this is a “basic factual error.”

No, it’s not. Polygamous societies do not (at least in any society I have ever heard about) have group marriages. Men with more than one wife have multiple marriages with multiple women, not a single marriage with several wives. In fact, they generally take pains to separate the women, preferably in different houses. Whether or not you allow men to contract for more than one marriage (and for all sorts of reasons, this seems to me to be a bad idea unless you’re in an era of permanent war), each marriage remains the union of a man and a woman.

Original article found here: http://www.janegalt.net/blog/archives/005244.html