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Markets are a many splendid (and unsplendid) thing

The thing I find most unsatisfactory about the debate over gay marriage is the widespread misunderstanding about the law as it is presently configured.

Of course, I cannot speak about the law in other countries but here in Britain same-sex marriage is not illegal it is void. There is a world of difference in those two positions.

Allow me to explain. If two men (or two women) in the UK decide that they wish to wed then they are perfectly free to engage in any type of marriage ceremony they desire accompanied by confetti, bridesmaids and any number of drunken, embarrassing relatives reeling around the dancefloor while the band plays ‘Tie a Yellow Ribbon Round The Old Oak Tree’.

Nobody is going to a lift a finger to stop them nor will they ever be subjected to any form of official censure or arrest or prosecution. However, the state will not issue a licence for that marriage and, as far as the law is concerned, there was no marriage. It never happened, it does not exist and the participants remain as two single people. Hence, the gay-marriage campaign (for want of a better term) is not really about rights but about recognition. What they want is not the ‘right’ to get married but the legal recognition of that marriage contract as having the same force and validity as the heterosexual version. In this day and age, legal recognition means state recognition.

Thus far, most governments have refused to concede this not, I believe, out of any antipathy towards homosexuals but rather a combination of the fear that it might be a vote-loser with lots of people who do and the prospect of having to redraft so many other laws (e.g. inheritance, adoption, taxation) as an unavoidable result.

Yes, marriage (in common with so much else) is a state-regulated business but the state did not create it. Traditional heterosexual marriage enjoyed centuries of customary (and common law) recognition long before HMG ever passed the first Family Law Act. In fact, all the government did was to acknowledge that the institution existed and then took over most of administrative formalities from the Church.

The typical (indeed, stock) libertarian answer to this problem is to propose the de-nationalisation of marriage so that same-sex couples will not have to rely on the benediction of the state in order to reap the benefit of a valid marriage contract. I, myself, have taken this same position. However, it occurs to me that the free market might not be the answer to this problem and could even make it worse.

The abiding characteristic of state-made (or state-endorsed) law is that everyone is forced to recognise and deal with it regardless of whether or not they approve of it. However, the opposite must also be true and the inevitable consequence of de-nationalising marriage is to de-nationalise the requirement for recognition.

For example, one of the commonest complaints I have heard from gay couples in the UK is about hospitals who refuse to recognise same-sex partners as spouses and therefore deny them privileges (such as visitation rights) that they grant as a matter of course to heterosexual husbands and wives. Now if HMG were to bestow its blessing on gay marriage then the hospitals would be forced to change their ways. They would have no choice. But, in a free market, they most certainly would have a choice. Without compulsion, they would be enable to set their own policies in this regard and a hospital, say with a very conservative board of governors, might decide that they simply will not recognise same-sex couples as ‘married’ regardless of how many bits of paper they wave around. Furthermore, there is not a damn thing anybody will be able to do about it.

And the same applies to hotels, banks, airlines, travel companies and a host of other industries and institutions? Without compulsion would same-sex marriages be recognised by, say the Roman Catholic Church? The Beth Din? An Islamic Bank? One man’s free market choice is another man’s discrimination but that is equation which never appears in the calculations of those libertarians who take it as read that, without state interventions, everyone will naturally make liberal and enlightened choices. A preposterous conceit. Yes, let the free market speak by all means but no-one should assume they are always going to like what is says.

Of course, the counter-argument is that there will be lots of people who are prefectly happy to recognise gay couples as married couples and treat them accordingly and that is surely true but that will still leave those gay couples facing the equivalent of ‘colour bars’, i.e. hospitals they cannot use and hotels that will not allow them to share a double room. If they feel a sense of grievance now over being treated differently then how much deeper will that sense of grievance grow in a society where it is not just permissable to treat people differently but sound business practice to do so?

It seems to me that what gay couples want is not a just a ‘right to marry’ but a society which naturally and happily regards them as married and no different in any way from heterosexual couples. But that requires a high level of customary acceptance which can neither be demanded nor simply conjured into existance.

This is not to say that customary acceptance will never happen. It may well happen and when it does, then the law will change to accomodate it without the need for noisy compaigns and agitation. But until such time as that level of acceptance has been achieved, gay marriage is going to require state intervention and lots of it.

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9 comments to Markets are a many splendid (and unsplendid) thing

  • The Wobbly Guy

    David, your point about individual discrimination is quite on the mark, but I notice that the profit motive often overrides the tendency to preach one’s moral system(religion).

    In your example, firms would appear that do cater to such minority groups(gays, blacks, etc) as well as the majority heterosexual population. For such companies, it could be argued that since they have a wider pool of clients to pull from, they might actually earn more eventually. As they expand their business at the expense of the more discriminating, the ‘colour’ firms would likely be driven to the fringe.

    Maybe I’m too optimistic here, but it would seem the market does have a solution for the problem.

    TWG

  • “…gay marriage is going to require state intervention and lots of it.”

    You got that right. This may end up gaining momentum here in the States. The interesting thing will be how fast the history books in the public schools get rewritten so that the struggle for gay rights is enshrined right next to the struggle for Black civil rights. Of course, some very large plurality, maybe a majority, think the conduct is a sin meriting eternal damnation. Not a good combination. Also, by making it a “right” you make the traditional moral teaching of most religions “hate speech” and hence sanctionable. This process is ongoing in Canada now, but it will provoke much more outrage and resistance here in the States.

    There is going to lead to some very contentious times over here, with the State enlisted on the side of those exercising their new “right”. It will be a very valuable weapon in the hands of Kerry, et al., if he wins, against their arch-foes the Christian Right.

    Unintended consequence, or thin edge of the wedge?

  • Jacob

    “It seems to me that what gay couples want is not a just a ‘right to marry’ but a society which naturally and happily regards them as married and no different in any way from heterosexual couples.”

    More than that:
    What gay couples want is not only a society that accepts them, they want a state that enforces this acceptance. They wand the state to force all people to treat them like any heterosexual couple.

    This is not without precedent – after all the state enforces racial equality. Maybe it’s not very libertarian.

  • Although the reverse discrimination does seem acceptable. Magazine ads for gay travel agencies and other leisure businesses are quite common around the western world. I doubt one could advertise heterosexual-only clubs and activities without getting themselves in hot legal waters. What is the legal and moral basis for allowing discrimination against a majority ?

    Yes, some hospital could discriminate against gays but that would only create a market for a ‘gay hospital’. And that is where free markets can work their magic by addressing business opportunities. Those who wouldn’t want to own shares in an hospital catering to the gay community in San Francisco, raise your hands…

    Of course, in some more remote parts, the market opportunity might not be sufficient and homosexuals could as a result be shut out. Why couldn’t this be addressed by the local authorities rather than national ones ? By all means intervene if and when and where the market cannot work.

    In this particular case, hospitals could, and should, simply allow access to those people on a patient’s emergency contact list, per insurance records. If I put your name there, it’s rather unlikely I’m going to sue the hospital for letting you visit me.

  • Shawn

    “Without compulsion, they would be enable to set their own policies in this regard and a hospital, say with a very conservative board of governors, might decide that they simply will not recognise same-sex couples as ‘married’ regardless of how many bits of paper they wave around. Furthermore, there is not a damn thing anybody will be able to do about it.”

    Is this not what we mean by freedom?

    “One man’s free market choice is another man’s discrimination but that is equation which never appears in the calculations of those libertarians who take it as read that, without state interventions, everyone will naturally make liberal and enlightened choices.”

    I certainly dont take it as read that in a free society people will make “liberal” and “enlightened” choices. I do take is read that they will make choices. Whether they are liberal or enlightened depends very much on the individuals view as to what those words mean. To paraphrase, a conservative is a liberal who has been mugged by reality. Take away the liberal-welfare state, and my personal hope is that lots of people get mugged, figuratively speaking.

    This boils down to what is meant by “liberal”. I take it to mean limited government, individual rights, and property rights. I dont take it to mean anything goes so long as your happy, which is what social liberlaism seems to boil down to.

    Having said that, the state should not descriminate either for or against anyone who obeys the law, which means that as far as state jobs go, such as the Police and the Military, the state should recognise any private contract, including a marriage contract between homosexuals, and any benifits related to married couples should apply to all.

    One of the great strengths of libertarianism is that it allows us all to live together in relative peace, without either social liberals or social conservatives using the state to force their views on anyone.

  • Here’s a hypothetical situation. In a jurisdiction where “gay marriage” is legalized, a same-sex couple visits a marriage counselor. The counselor refuses to counsel them, on the basis that homosexuality is a psychological disorder, and that it is unethical to counsel people to pursue behavior that necessitates assuming a disorder to be normal.

    Enter the discrimination lawsuit. The plaintiff’s lawyer sees it as a slam-dunk. The counselor is painted as the psychiatric equivalent of a flat-earther. After all, in 1973 the American Psychiatric Association took homosexuality off its list of sexual disorders.

    But at the time this edict represented a small proportion of the psychiatric community, and it contradicted 80+ years of published research into the matter. The defending attorney argues that the plaintiff must prove that the scientific evidence supporting the 1973 ruling is so overwhelming that any argument to the contrary is indeed flat-earth nuttery.

    Outside, a Fox reporter dares to ask protesters about the 1973 ruling. Several protesters blather about the APA “recognizing human rights” (which isn’t the APA’s job) and “finally coming to their senses.” After the first round of meaningless rhetoric, the reporter asks directly, “From what evdience did the APA draw to reach its conclusion?” The protesters become livid, accusing the reporter of “homophobia” and “ignorance.” He asks “What is the evidence” three or four times without getting a direct answer.

    Unfortunately, he can’t get much of an answer from the counterprotesters, either. Some personally know or know of ex-homosexuals, and some are mildly familiar with some post-1973 un-PC research. Some have slight knowledge of the events surrounding the 1973 ruling – that gay activists were meeting with APA leaders prior to the ruling and that most APA members objected to the change in the Diagnostics and Statistics Manual that resulted – but hardly anyone can state the scientific rationale offered for changing the classification of homosexuality in the DSM.

    We’re expected to believe that homosexuality is psychologically normal without being told why. “Because the APA folks are professionals and you’re an ignorant bigot” isn’t a scientific response. (APA members were not and still are not unanimous in their support for the decision.) It’s related to some but not all gay-related issues; the overriding issue of sex education, for instance, is whether the government may justly supercede the authority of parents to socialize children.

    Also, the question is completely irrelevant to whether social conservatives and gays should be able to get along with each other. Getting along doesn’t mean sycophantic conformity. It means valuing another even if you don’t value the other’s beliefs, actions, or psychological disposition. Everybody thinks that each of their friends is messed up in the head about something. It’s not the end of civilization.

  • Johan

    It seems to me that what gay couples want is not a just a ‘right to marry’ but a society which naturally and happily regards them as married and no different in any way from heterosexual couples. But that requires a high level of customary acceptance which can neither be demanded nor simply conjured into existance.

    You are right, a “customary acceptance” can not be demanded nor, out of sheer magic, come into existence.

    …and I’m NOT going to have a State telling me, on the brink of forcing me, to like them, accept them, or marry them (if I was some kind of priest).

  • One of the lessons of childhood is that you can’t make people like you. Exhibit A that leftism is rooted in arrested development.

  • Jonathan L

    without state interventions, everyone will naturally make liberal and enlightened choices. A preposterous conceit.

    I think that most libertarians do not make such mistakes. Rather, its a case of what right does the state have to force a private institution to behave in a particular way, towards particular people. The idea that a religious organisation could be forced against deeply held beliefs to accept ways of life that it regards as immoral, is a terrible one.

    I am not a libertarian because I think it leads to enlightened and liberal people, but rather because I see the alternative as slavery.