On the “Libertarian Case” Against Gay Marriage
Political theory is not my field, but I have a rudimentary understanding of the major works that I developed when I was assigned as a teaching assistant in a freshman political science class on the subject. Nevertheless, I feel compelled to say something about this little piece of writing—“Marriage and the Limits of Contract”—by Jennifer Roback Morse of the Hoover Institution. [EDIT: Now with the Ruth Institute].
This is a self-described “Libertarian” making the “Libertarian” case for state management of reproduction and sexual activity. To get there she defines marriage as “a society’s normative institution for both sexual activity and the rearing of children,” and then argues that “society can and must discriminate among various arrangements for childbearing and sexual activity,” because “society, especially a free society, needs the institution of marriage…” Morse thinks the state should regulate private sexual activity and manage family relationships to preserve a norm about the way human beings should run their lives, even as she defines “libertarian freedom” as the “modest demand to be left alone by the coercive apparatus of the government.”
Despite this definition, such regulation is Libertarian, she says, because “dissolution of marriage breaks the family into successively smaller units that are less able to sustain themselves without state assistance.” When this happens, the state must step in to provide assistance for those whose families do not, and this requires more government. She is saying that the state must manage sexual activity, childbearing, and family relationships so that it will not have to support those left without family support. By “left alone” she means “forced to have and support a family so the government won’t have to redistribute wealth.” In this version of libertarianism the point is not to limit the coercive power of government but to focus government coercion on specific areas of human activity in support of specific social norms that a particular segment of the population thinks best.
It is difficult to decide where to start with this. Reluctant as I am to criticize a fellow academic so bluntly, I have to say that if one of my undergraduate students handed this in as an essay making a libertarian case for state management of childbearing and sexual activity I would give it about a “C,” for several reasons. Since I do not have hours to spend deconstructing this, I will focus here on ontology and argue that she gets the “state of nature” wrong—it does not include social norms.
One reason why Morse seems to think that it does is that she thinks Rousseau defines “natural” as “acting on impulse” and “freedom” as “unencumbered by law.” (It is not clear how “unencumbered by law” differs from “left alone by the coercive apparatus of government.”) Morse never defines “state of nature” beyond suggesting that Rousseau’s is “unnatural” because “a widespread nonsystem of impersonal sexual couplings has never occurred in any known society,” and no belief system has “ever claimed that sexual activity is meaningless, having only the meaning individuals privately assigned to it.” For Morse, the state of nature is constricted by social norms, at least in the sexual arena.
She comes to this conclusion about Rousseau (or at least supports this assertion about Rousseau) by taking a quote out of context. To show Rousseau’s “view of natural freedom” she provides this quote from his Discourse on the Origin and the Foundations of Inequality Among Men:
“The males and females came together fortuitously, according to chance encounters, opportunity, and desire, without speech being very necessary to interpret the things they had to say to each other. They separated with the same ease. At first the mother suckled her children to satisfy her own need; then, once the habit made them dear to her, she later nourished them for their need. As soon as they had the strength to seek out their own food, they did not delay in leaving the mother herself, and since there was hardly any way of finding each other again other than to remain within sight, they were soon at the stage where they did not even recognize one another.”
Morse cites this passage as a description of “sexual pairing in a state of nature.” It may be that, but Rousseau’s intent is to present a theory on the origin of language. Not only does this reveal Morse’s preoccupation with sex, it shows that she misunderstands the state of nature. Morse thinks it means licentiousness, “acting on impulse,” and general disregard for “informal social and cultural restraints.” The point here is that in the state of nature described by Rousseau, no social constraints exist:
“Whatever moralists may say about the subject, the human understanding owes a great deal to the passions which, by common agreement, also owe a great deal to it. It is through their activity that our reason is perfected.”
By exercising our passions, he says, we perfect our reason and develop “human understanding”—or norms. The do not preexist social interaction, and are therefore not “naturally occurring” any more than an office building is.
Rousseau goes on to define the state of nature as the state of human existence prior to reason.
“So setting aside all those scholarly books which teach us only to see men the way they have made themselves and thinking about the first and simplest operations of the human soul, I believe I can discern two principles prior to reason: one makes us passionately interested in our well being and in the preservation of ourselves, and the other inspires in us a natural repugnance at seeing any sensitive being perish or suffer—and, in particular, beings like ourselves. From the cooperation and combination our mind is able to create of these two principles, without it being necessary to bring in the principle of sociability, follow, it seems to me, all the rules of natural right, rules which reason is later forced to re-establish on other foundations, when through its successive developments it has ended up successfully suffocating nature.”
Natural Right, for Rousseau, derives from the combined need of man to both protect his own existence and limit the suffering of others—so man has a natural right to protect his property, so he can ensure his own existence. Development of these rights—through reason—actually “suffocates” nature, and forces humans to justify natural rights on “other foundations.” He is saying that once man leaves the state of nature by using reason to promote self-preservation and limit suffering—both of which depend on subjective definitions of “preservation” and “suffering”—he must begin to create social justification for the rules he makes.
This is important because Rousseau is describing humans who exist before the development of social rules. This supposes humans who do not interact—for in their natural state humans are alone, and it is only when they begin to encounter each other do they begin to need social rules. Given that early interaction included reproduction, it comes as no surprise that humans developed norms to regulate it over time. But these norms could not possibly exist in Man’s natural state—that is, it does not flow automatically from creation or existence—because they are a product of applying reason to social interaction to develop rules that protect Rousseau’s “natural rights.” Social norms, because they are a human construct, are not part of nature any more than government—also a human construct—is. The state of nature is both pre-political and pre-social, so marriage is not a “naturally occurring” institution. Morse, on the other hand, rejects Rousseau’s admonishment to avoid confusing “savage man with the men whom we have before our eyes.” Morse thinks the institution of marriage is natural because it is the institution we see today, and she cannot normatively imagine a different social constraint.
Morse might have been better off using Locke, who argues in Chapter VII of The Second Treatise of Civil Government that “The first society was between man and wife,” and that this leads naturally to the development over time of larger social groups (and eventually the state). This does not directly refute the argument above—this “first society” could not form until at least one couple had interacted by mating, and then developing social rules (perhaps out of jealousy?) for managing their relationship. The social norms managing the relationship might be obviously needed because of the “natural” desire to reproduce, but nothing about man’s basic nature makes one or another version of these norms more “natural.” One might predict different marriage rules, for example, if assuming humans are naturally good as opposed to naturally evil. But it does suggest that some sort of marriage norm is “pre-political” in the sense that it is the basis for social interaction before the state is created.
Dr. Morse presents a definition of “libertarian freedom” as liberation from the “coercive apparatus of government” as she makes a libertarian case that government’s power should be used to manage “childbearing and sexual activity,” effectively arguing that the state should confine sex to marriage so that it won’t have to take care of poor people. She misunderstands and mischaracterizes Rousseau by suggesting that he described sexual activity among primitives as part of a definition of the state of nature, and this leads her to completely misconstrue—whether or not intentionally—what political theorists mean by the term. She misses this point so completely that she believes that man, having already constructed social norms such as marriage, is still in a state of nature because man is still “pre-political.”
Whatever libertarians at the Hoover Institution think about the institution of marriage, they need to think of a better “libertarian case” calling on the state to protect it as currently practiced than the one made here. Asking the state to regulate reproduction and sexual activity in the name of building extended families so that the state may be relieved of the need to protect the weak is the same as asking the state to use its coercive power to make society look a certain way. Indeed, one might expect libertarians to argue the opposite: that the state should reserve itself and allow citizens to voluntarily organize society to their benefit. Without state assistance, they may choose strict marriage rules and extended families to sustain themselves, and they may not. In this way, perhaps, the institution of marriage could be considered “naturally occurring,” whether or not in a state of nature. Natural or not, this is what it means to ask the state to keep its “coercive apparatus” to itself.