Libertarianism in New York

New York's approval of same-sex marriage last night is being celebrated -- rightly -- as a victory in the struggle for gay rights. From a more distant perspective, however, it also represents another step in the gradual ascendancy in America of one concept of government over another -- and equally respectable philosophically -- concept: a victory of social libertarianism over neo-conservativsm.

The balance of victory in the New York Senate was provided by four Republican senators, two of whom had voted against a similar measure two years ago. One of those senators (incidentally, a Catholic) stated that, after much personal anguish, he could not again vote to deny equal marital rights to gay citizens of his state. In other words, he now viewed the vote as one affecting civil rights. On the other hand, the Catholic bishops of New York declared after the vote:

that marriage is the joining of one man and one woman in a lifelong, loving union that is open to children, ordered for the good of those children and the spouses themselves. This definition cannot change, though we realize that our beliefs about the nature of marriage will continue to be ridiculed, ....

The bishops' statement may be slightly disingenuous -- the bill passed last night is not an attack upon their religious and sacramental definition of marriage -- but inherent in their statement is a political philosophy that in recent years has represented the social aspect of a broader package known as "neo-conservatism." But the philosophy is hardly recent; it dates back at least to Plato, and was certainly fully expressed by Calvin in sixteenth century Geneva and by the pilgrim fathers in New England. Simply stated, the philosophy asserts that one function of the state is to define and express the values of the community, and to encourage (and, when necessary, force) individuals to adhere to those values.

According to this political philosophy, if the community's accepted norms -- religious, social, cultural, whatever -- insist that marriage is limited to unions between a man and a woman, the state is fully justified in enforcing that limitation, and in providing sanctions against individuals who seek to live their lives otherwise. In its more moderate form, the neo-conservative philosophy might require some reasonable nexus between the community value being protected and the behavior being sanctioned -- e.g., does permitting unions between couples of the same sex really damage the community's traditional concept of marriage -- but once such damage is shown to be possible, the state would be justified in cracking down on aberrant behavior.

Contrary to the neo-conservative philosophy, and living along side it during most of American history, has been a strand of social libertarianism -- "keep the government out of my life." In simplistic terms, libertarianism holds that unless my acts directly harm someone other than myself, the government has no legitimate interest in controlling what I'm doing. The equal protection clause of the Fourteenth Amendment has often been interpreted to promote a form of libertarianism, preventing the government from controlling individual behavior that has no reasonable nexus with a legitimate governmental objective.

American society and government have swung back and forth between the two inconsistent poles. The trend since World War II has been, fitfully, toward social libertarianism. The cause for this trend has been the increasingly fragmented social consensus in a population that is no longer descended primarily from Anglican and Nonconforming immigrants from Britain to the East Coast, but that now draws from every geographical region, cultural background and religious belief in the world. With such diversity -- itself increasingly seen as one of America's strengths -- there are fewer areas of genuine social consensus that the government can legitimately enforce.

In the absence of such consensus, the cultural aspects of neo-conservatism become less and less relevant philosophically, and appear more and more as simply the imposition of the values of one minority group (or, at times, those of a bare majority) on the lives of the rest of the population. When cultural and religious consensus breaks down, libertarianism becomes an increasingly attractive alternative philosophy, even for those to whom neo-conservatism might be attractive under different conditions.

After all -- and churches themselves might well ponder this -- do I want to set the precedent of imposing my beliefs on others today, while I'm part of a bare majority, when tomorrow I may well be in the minority?

We appear to be at the point in American history, therefore, when the balance is tipping to social libertarianism. The tipping will never be complete, and we needn't fear radical changes in legislation. Where a clear consensus as to appropriate conduct exists, it can and will still be enforced. Cock fighting and bear baiting will continue to be outlawed; marriage between humans and orangutans, the possibility of which seems to have alarmed some writers, will still be outside the pale. Recognition of a family headed by two men or two women today won't lead ineluctably to another Caligula tomorrow appointing his horse as consul.

And churches -- themselves not subject to the government's need to balance individual rights against consensus values -- will still be free to define marriage for their members in accord with their own beliefs and values, and to seek new adherents to their beliefs.

Evolution of values in a society shouldn't be equated with disappearance of values; it simply reflects the fact that healthy societies themselves change. In diverse societies, values compete freely among themselves for acceptance; the government's thumb doesn't try to tip the scale.