Steven Horwitz

For the Liberty Fund conference I'm the discussion leader at this weekend, one of the readings was the epilogue to volume three of Hayek's Law, Legislation, and Liberty (also known as "The Three Sources of Human Values"). I hadn't read this in a long time, but boy did we think it was the bee's knees in grad school. In re-reading it, it's even better than I remember and was a perfect choice for this particular LF. One passage that struck me given my current interests is reprinted below. It struck me because I think the question of whether one can make a Hayekian case for legalizing same-sex marriage (given the state's involvement in marriage) is a fascinating one because I can see both the pro and con arguments. (I'm pro, but I think you can make a Hayekian case either way.)

This passage, however, fits like a glove to the way in which our understanding of marriage is changing and I think this is the best abstract argument of Hayek's one could use to make the case FOR legalizing SSM on Hayekian grounds. From p. 167 of LLL 3, my emphasis:

It is only by recognizing the conflict between a given rule and the rest of our moral beliefs that we can justify our rejection of an established rule. Even the success of an innovation by a rule-breaker, and the trust of those who follow him, has to be bought by the esteem he has earned by the scrupulous observation of most of the existing rules. To become legitimized, the new rules have to obtain the approval of society at large - not by a formal vote, but by gradually speading acceptance.

The successive changes in morals were therefore not a moral decline, even though they offended inherited sentiments, but a necessary condition to the rise of the open society of free men.

I think the argument from equality under the law fits the first sentence perfectly. For many today, especially the young, the rule that marriage is only man-woman conflicts with other moral beliefs about love, marital choice, and their tolerance/acceptance of homosexuality. And those gays and lesbians who are pushing for same-sex marriage are great examples of the second sentence, as they want to be a part of the existing rules in the sense that they think marriage is great and they want "in" to that institution. It is precisely because same-sex couples have become part of the furniture of the lives of so many heterosexuals by living wonderfully bourgeois lives that homosexuality has become normalized and that normalization and their bourgeois lives are the best evidence of their "scrupulous" observation of the general rules of marriage. By acting married, they show their fealty to the broader rules, even as they challenge one of them. Finally, it seems clear that "gradually spreading acceptance" of same-sex couples, including same-sex parenting, has already taken place and is ahead of both the law and any formal votes.

I included the last sentence because it so perfectly captures generations of changes to the Western family. Every time the family has changed, the defenders of "inherited sentiments" said disaster was upon us and they were wrong. Those changes, like SSM, took place in largely the way Hayek describes in the longer extract above.

This passage from Hayek is a really good example of how his treatment of tradition is more "respect" than "reverence," despite what his conservative defenders would like to believe. I think this passage gets it just right and makes for a nice Hayekian justification for legalizing same-sex marriage.