Jonathan Rauch provides a “Hayekian” argument about gay marriage and institutional change. The argument is this:
“…that human societies’ complicated web of culture, traditions, and institutions embodies far more cultural knowledge than any one person could master. Like prices, the customs generated by societies over time may seem irrational or arbitrary. But the very fact that these customs have evolved and survived to come down to us implies that a practical logic may be embedded in them that might not be apparent from even a sophisticated analysis. And the web of custom cannot be torn apart and reordered at will, because once its internal logic is violated it may fall apart.
It was on this point that Hayek was particularly outspoken: Intellectuals and visionaries who seek to deconstruct and rationally rebuild social traditions will produce not a better order but chaos.”
Rauch characterizes this as the traditionalist objection to legalizing gay marriage: who knows what could happen if you change traditional marriage.
Yet Rauch argues that Hayek was not against all institutional change. He was primarily concerned with institutional change aimed at creating utopias. Since gay marriage is not utopian, argues Rauch, a Hayekian has little to fear.
Rauch, however, inadvertently makes a case against both a constitutional amendment banning gay marriage and a court decision allowing it nationwide. Hayek is making a case for gradual institutional change: Neither a nationwide ban nor outright legalization. Letting states experiment would allow us to see just what the consequences of changing the marriage laws are. Moreover the Tiebout hypothesis at least mitigates concerns about jurisdictional differences.
Institutional gradualism would seem to be Hayek’s revealed preference on the subject of marriage. Hayek’s first wife would not give him a divorce, so in 1950 he came to the United State to establish residency in Arkansas; at the time one of the only states with no-fault divorce laws that would allow him to divorce his first wife and wed his second cousin.